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In most European countries, fault-based liability is the principal pillar of extra-contractual liability, at least in theory. However, proving fault of the person alleged to be liable may be a requirement which is difficult or even impossible to fulfil, even for claimants who may in fact deserve compensation. Ski accidents illustrate these difficulties particularly well. In cases of ski collisions, fault-based liability achieves compensation often only partially, if at all, generates high transaction costs and is often inefficient, leads to results that might be perceived as unfair by victims, and achieves largely unsatisfactory results when it comes to distributing the social costs of ski accidents. The reason is that collisions often happen in a fraction of a second, that the dynamics of the accident often render the reconstruction of the accident very difficult, if not impossible, and that there is typically little or no evidence. Often witnesses are not available, or were themselves busily skiing and did not pay attention to the details of the accident, and are often, willingly or unwillingly, biased. Given these weaknesses of fault-based liability there is reason to consider alternative regimes for ski collisions. It is argued that applying a system of fault-based liability with a presumption of fault, or, alternatively and arguably even better, a strict liability system for dangerous activities to ski collisions, combined with (mandatory) liability insurance, would achieve a higher level of compensation, reduce transaction costs to a minimum, and often achieve fairer results. *Corresponding author: Thomas Kadner Graziano, Professor at the University of Geneva; Director of the Department of Private International Law and of the Law Faculty’s Programme on Transnational Law, E ˗ Mail: thomas.kadner@unige.ch JETL 2016; 7(1): 1–26 Brought to you by | Université de Genève Authenticated Download Date | 5/3/16 3:17 PM

The Distribution of Social Costs of Ski Accidents through Tort Law: Limits of Fault-Based Liability in Practice – and Alternative Regimes