The doctrine that addresses civil liability is consistent in mentioning that this legal institution is composed of several elements. These are the following: (i) the use of dangerous devices (in cases of strict liability); (ii) a wrongful act (in cases of subjective liability); (iii) the production of damage; (iv) the causal link; and (v) the inexcusable fault of the victim. 1
It is in accordance with these components that judges in civil matters have been consistent, in the past, that the claimant party (who considers themselves to be a victim) must prove such extremes. All this under the principle of law “They who assert, must prove”, which is established in Article 281 of the Code of Civil Procedure for the Federal District (Mexico City).
The above principle is a rule that governs all civil lawsuits of any subject matter and has always been categorical, so that in the event that the plaintiff is unable to accredit the extremes of their claim, then the judge proceeds to acquit the defendant (considered as allegedly liable). Likewise, the vision of these civil liability lawsuits focused mainly on the fact that the fault and/or negligence of the liable party had to be accredited, so that in the absence of accreditation, such an acquittal would occur.
However, it happens that nowadays, in accordance with the new paradigms of Tort Law, the focus is no longer on the accreditation of fault or negligence, and the victim becomes the centre of study. Although this seems to be a question of semantics, the new trend affirms that in the face of a claim of this nature, liability must be presumed, hence the fault and/or negligence of the liable party. This has arisen because in many cases, in the opinion of the courts, it was very difficult for the victim to gather evidence. We do not consider this aspect to be an element of civil liability, but on the contrary, as an exclusion of liability, it is far from being a component of this figure and
becomes an issue that breaks the formation of Civil Liability.
This new thinking has led judges to stop being rigid in resolving these matters, so that they start from a presumption known in Latin as “res ipsa loquitur” which means, the accident speaks for itself, regularly used in the Anglo-Saxon system. Now, this new trend cannot lead to the extreme of eliminating the burden of proving fault or negligence, naturally; nevertheless, in cases in which it is determined that the victim’s burden of proof is complex, the courts have opted to transfer this burden of 1 We do not consider this aspect to be an element of civil liability, but on the contrary, as it is an exclusion of liability, it is far from being a component of this figure and becomes an issue that breaks the formation of civil liability. proof to the responsible party and it is this party that provides evidence to prove that the event or accident was not the result of its fault or negligence.
Under these scenarios, although we do not agree with this new perspective, since it becomes subjective to determine the cases in which the complexity of providing evidence by the claimant must be determined, we consider, according to our experience, that it is important to take into consideration for insurers in cases where the liability of their insured is directly claimed (direct action), the need to collect as much evidence as it is useful, not only at the time of being called to trial but also from the occurrence of the event (in case the insured gave timely notification) in order to always prepare a solid defense.
Author:
Abraham Estrada
Socio
