uncertain causal relationships in a similar manner. The reversal of the
burden of proof regarding causation is no more than a reduction of the
probability required for attribution.
Professor Walter van Gerven (van Gerven, Lever andLarouche: Cases, Materials and
Text on National, Supranational and International Tort Law, 2000, p 441), surveying
the tort law of, in particular, Germany, France and Britain, wrote:
In many cases, it will be possible for the victim to show that he or she has
suffered injury, that it has been caused by someone who must have been at
fault, but the author of that fault will not be identifiable. The best that the
victim will be able to achieve is to define a class of persons of which the
actual tortfeasor must be a member. Strictly speaking, however, the
basic conditio sine qua non test will not be met, since it cannot be said of
any member of the class that the injury would not have happened 'but for'
his or her conduct, given that in fact any other member could have caused
the injury. Nonetheless, all the legal systems studied here have
acknowledged that it would be patently unfair to deny recovery to the
victim for that reason.
In Germany cases of this kind have been held to be covered by the second sentence
(to which emphasis has been added) of BGB §830.1 which provides:
If several persons have caused damage by an unlawful act committed in
common each is responsible for the damage. The same rule applies if it
cannot be discovered which of several participants has caused the damage
by his act.
Of this provision Markesinis and Unberath (The German Law of Torts, 4th ed, 2002, p
900) states:
§830.1, second sentence, applies the same rule to a different situation
where several persons participate in a course of conduct which, though not
unlawful in itself, is potentially dangerous to others. The difference
between this and the previous situation lies in the fact that whereas in the
former case of joint tortfeasors the loss is caused by several persons acting
in consort, in the latter case only one person has caused the loss but it is
difficult if not impossible to say which one has done so. (The classic
illustration is that of the huntsmen who discharge their guns
simultaneously and the pellets from one unidentifiable gun hit an innocent
passer-by.) In this case, as well, §830 BGB adopts the same rule and makes
all the participants liable to the victim for the full extent of damage.
Article 926 of the Greek Civil Code, entitled "Damage caused by several persons"
provides:
If damage has occurred as a result of the joint action of several persons, or
if several persons are concurrently responsible for the same damage, they
are all jointly and severally implicated. The same applies if several persons
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