Strict liability in disguise

Ironically, therefore, in the very moment of its triumph, the shadows of decline began to fall upon the fault principle; fostered by the economic liberalism of the 19th century, it was unsuited to the emerging paternalistic spirit of the 20th.^[5949] But the new forms of strict liability tended to be regarded, just as the old ones, as anomalous instances of a ius singulare; they were locked into special statutes and thus remained isolated from the mainstream of private-law legal theory.

"whenever it seems necessary in order to achieve a socially acceptable distribution of the accident risks peculiar to modern life, the courts tend to insist on precautions which it is virtually impossible to satisfy, and they can do this because, judging a case ex post facto, they can always discover some precaution or other which, had the defendant adopted it in time, would have prevented the occurrence of the harm."

In other cases, the courts have alleviated the injured party's burden of proof by accepting prima facie evidence: if the plaintiff is unable to adduce direct evidence establishing negligence on the part of the defendant, he may still succeed if he proves other facts justifying the conclusion that the defendant failed to exercise the necessary care. This is of particular importance in medical malpractice suits. When sponges, tubes or scalpel blades are found, after an operation, in the body of the patient,^{[5952] [5953] [5954] [5955] [5956] or when a physician mistakes the organ on which or, even worse, the patient on whom he is supposed to operate,[5957] the doctor may be taken to have been at fault, unless he is able to demonstrate the reasonable possibility of an alternative explanation of the incident.[5958] Occasionally the courts have even reversed the onus of proof. In German law this has happened, most notably, in cases involving products liability.[5959]}

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