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Journal articles on the topic 'Tort law. Probability. Causation'

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Published: 11 March 2023

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1

Karnaukh, Bohdan. "Proof of Causation in Tort Cases." Studia Iuridica 82 (March 2, 2020): 149–60. http://dx.doi.org/10.5604/01.3001.0013.9616.

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The article addresses the problem of uncertainty over causation in tort cases. It reveals the interconnection between burden of proof and standard of proof. The author provides a comparative overview of approaches to standard of proof in common law and civil law systems. It is argued that while in common law there are two different standards viz: beyond-reasonable-doubt-standard for criminal cases and balanceof-probabilities standard for civil cases in civil law system there is only one standard applicable both to criminal and civil cases. With comparative analysis in the background the article also reveals the peculiarities of Ukrainian law in the respect of the issue raised. The problem is approached in a pragmatic manner: using a hypothetical case the author models practical outcomes entailed by each of the approaches being applied to the case. Eventually the conclusion is made that there are four ways of coping with uncertainty over causation: (1) to reverse the burden of proof; (2) to calibrate the standard of proof for certain cases; (3) to recognize the very creation of the abnormal risk as a compensable damage; and (4) to multiply damage plaintiff sustained by the probability factor indicating the likelihood of the damage being actually caused by the defendant.

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2

Harrison, R. J. "Science/ Law Interactions and the Problem of Causation." Energy & Environment 11, no. 2 (March 2000): 207–16. http://dx.doi.org/10.1260/0958305001500022.

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Traditionally tort (personal injury) cases have been regarded as isolated disputes concerned with individual harm, where the law's role was simply to allocate losses between tortfeasor and victim according to principles of corrective justice. With the advent of the toxic tort – a cause of action which arises when a plaintiff has developed a disease following exposure to a toxic agent (chemical or in the form of energy) has come a fundamental challenge to the traditional basis of causation where under negligence or strict liability the toxic tort plaintiff (like all tort plaintiffs) must establish a causal connection between the tortious conduct and the loss for which recovery is sought. When applying the ‘balance of probability’ test to a toxic tort, two potential problems arise. First the test does not work where there are multiple or even alternative possible causes of a plaintiff's injury. Here the burden of proof demands a degree of certainty in excess of fifty per cent in an area where estimates, probabilities and scientific uncertainty are the norm. Second, difficulties occur in trying to establish the origins of the plaintiff's disease, in particular, the biological mechanism responsible for initiating or mobilising the illness. Underlying the basis of all toxic torts, distinct areas of scientific knowledge, grounded in an epistemological and procedural framework provide the evidence upon which the expert offers his opinion. This article examines the problems that such evidence poses for the legal system and reflects on some of the jurisprudential issues that arose in Reay and Hope v British Nuclear Fuels.

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3

Karnaukh, B. P. "Loss of a chance doctrine in american case-law." Uzhhorod National University Herald. Series: Law, no. 65 (October 25, 2021): 112–17. http://dx.doi.org/10.24144/2307-3322.2021.65.20.

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Loss of a chance doctrine is an innovative approach in tort law that allows to circumvent the unprovability of causation by recognizing a new category of compensable harm. According to the doctrine, even when the plaintiff cannot prove the existence of a causal link on the balance of probabilities, he/she nevertheless should be able to claim compensation for the chance of a favorable outcome which he was deprived of (notwithstanding the chance was less than 50 percent). Almost half of the US states have adopted some variation of the doctrine. The adoption of the doctrine was furthered significantly by the arguments presented by Joseph King Jr. First, the doctrine has a clear advantage over the established ‘all-or-nothing’ approach, since it avoids a ‘leap’ from full satisfaction of the claim to complete rejection thereof in cases where the difference between the probability of causation is negligible (51 and 49 percent). Second, without being legally liable for depriving a patient of a less than 50 percent chance, a physician has no legal incentive to take all reasonable care in treating a patient whose chances are lower from the outset. Third, the rigidness of the established approach may lead to manipulation of the basic postulates of tort law, in particular the requirement to prove causation. Fourth, the evidential impasse faced by a patient can be blamed on a negligent physician, since but for the physician’s negligence, there would be no uncertainty as to what caused the harmful out-come. However, even in the states that have adopted the doctrine, the scope of its application remains quite limited and covers primarily cases of medical negligence and cases of discrimination in employment or promotion. There is an ongoing debate among lawyers as to what should be the deciding factor for the applicability of the doctrine: the availability of a wide range of statistics, which is necessary to accurately assess the victim’s chances, or the special nature of the victim-tortfeasor relationship, the very essence of which is to preserve and increase the chances of the victim to get the most favorable result.

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4

Sobczak, Faro. "Proportionality in Tort Law – A Comparison between Dutch and English Laws with Regard to the Problem of Multiple Causation in Asbestos-Related Cases." European Review of Private Law 18, Issue 6 (December 1, 2010): 1155–79. http://dx.doi.org/10.54648/erpl2010083.

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Abstract: The problem of compensating a growing number of people who have contracted lung cancer, as a potential consequence of exposure to asbestos, is taxing many legal systems. In most legal systems, it is – in general – up to the claimant to prove all the elements of the liability claim to establish the liability of the tortfeasor. Proving the causation requirement is extremely difficult in asbestos-related cases in which uncertainty arises as to the cause of the damage (multiple causation). This article examines how Dutch and English laws have approached this problem of compensating asbestos victims. Under Dutch law, having previously operated using an ‘all or nothing’ approach, the Dutch Supreme Court recently, in 2006, applied the ‘proportional liability theory’ for the first time to solve such cases. This application of the proportional liability theory has also drawbacks but still leads to the most reasonable results in asbestos-related cases. English law, on the other hand, uses the principle of contributory negligence to award partial compensation. As opposed to English law, where only the employee’s smoking history is taken into account to reduce the total amount of compensation, Dutch law does also take into account other factors to assess the probability that asbestos has caused the claimant’s lung cancer. At this moment, we have to recognize and realize that there is simply no perfect solution available to solve such complex cases due to the lack of medical science. Résumé : De nombreux systèmes légaux sont confrontés au problème de l’indemnisation d’un nombre croissant de personnes ayant contracté un cancer du poumon, comme conséquence probable d’une exposition à l’amiante. Dans la plupart des systèmes de droit, c’est – en général – au plaignant de prouver tous les éléments de l’action en responsabilité pour établir la responsabilité de l’auteur du dommage. La preuve du lien de causalité est extrêmement difficile à établir dans les cas relatifs à l’amiante dans la mesure où il y a beaucoup d’incertitude quant à la cause du dommage (causes multiples). Le présent article examine l’approche en droit néerlandais et en droit anglais de ce problème d’indemnisation des victimes de l’amiante. Le droit néerlandais a d’abord choisi une approche du « tout ou rien », mais la Cour de Cassation néerlandaise a récemment, en 2006, appliqué pour la première fois la théorie de la responsabilité proportionnelle pour résoudre de tels cas. Si l’application de la théorie de la responsabilité proportionnelle a aussi des inconvénients, elle conduit toutefois aux résultats les plus raisonnables dans les cas relatifs à l’amiante. A l’opposé du droit anglais, où les antécédents de l’employé, fumeur, sont pris en compte pour réduire le montant total de l’indemnisation, le droit néerlandais prend aussi en compte d’autres facteurs pour évaluer la probabilité que l’amiante a bien été la cause du cancer du poumon du plaignant. A l’heure actuelle, nous devons bien reconnaître et admettre qu’il n’existe pas de solution parfaite permettant de résoudre des cas aussi complexes, ceci étant dû aux déficiences de la science médicale.

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5

Geiger, Stefan, and Constantin Kruse. "House of Lords 3 May 2006, Barker v. Corus Neue Impulse für das Europäische Deliktsrecht vom House of Lords." European Review of Private Law 16, Issue 2 (April 1, 2008): 339–51. http://dx.doi.org/10.54648/erpl2008026.

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Abstract: With Barker v. Corus, the House of Lords has given fresh impetus to European Tort Law. After having affirmed liability in cases of alternative liability in Fairchild v. Glenhaven Funeral Services and Others, it has now engaged with the concept of liability due to mere probability. Thus, the importance of the dogma of causation and of the dogma of the injured person’s established right for compensation has decreased considerably. The consequences for the law of liability and for the insurance industry are unforeseeable. Résumé: Avec Barker v. Corus, la House of Lords a de nouveau impulsé le droit européen de la responsabilité délictuelle. Après avoir affi rmé la responsabilité en cas decausalité alternative avec Fairchild v. Glenhaven Funeral Services and Others, elle s?est maintenant, avec des conséquences qui ne sont pas encore prévisibles ni pour le droit de la responsabilité civile ni pour les sociétés d?assurance, engagée avec le concept de responsabilité en raison de probabilité. Ainsi, et le dogme de la causalité et le dogme du droit établi du sinistré à la réparation ont perdu considérablement de leur importance. Zusammenfassung: Mit Barker v. Corus hat das House of Lords dem europäischen Deliktsrecht einen neuen Impuls gegeben. Nachdem es bereits in Fairchild v. Glenhaven Funeral Services and Others die Haftung bei alternativer Kausalität bejaht hatte, hat es sich nun, mit noch nicht absehbaren Folgen für das Haftungsrecht und die Versicherungswirtschaft, auf das Konzept einer Wahrscheinlichkeitshaftung eingelassen. Das Kausalitätsdogma und das Dogma von der feststehenden Ersatzberechtigung des Geschädigten haben damit erheblich an Bedeutung verloren.

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Wright, Richard W. "Causation in Tort Law." California Law Review 73, no. 6 (December 1985): 1735. http://dx.doi.org/10.2307/3480373.

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7

Карнаух, Богдан Петрович. "Overdetermined Causation in Tort Law." Problems of Legality, no. 150 (September 29, 2020): 67–77. http://dx.doi.org/10.21564/2414-990x.150.209744.

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8

Hee-Ho Pak. "Causation in EC Tort Law." HUFS Law Review 34, no. 2 (May 2010): 1–16. http://dx.doi.org/10.17257/hufslr.2010.34.2.1.

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9

Page, Joseph A. "Causation in European Tort Law." American Journal of Comparative Law 66, no. 3 (September 2018): 718–22. http://dx.doi.org/10.1093/ajcl/avy035.

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10

Clarke, Desmond M. "Causation and Liability in Tort Law." Jurisprudence 5, no. 2 (December 31, 2014): 217–43. http://dx.doi.org/10.5235/20403313.5.2.217.

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11

Young, Robert, Michael Faure, and Paul Fenn. "Causality and causation in tort law." International Review of Law and Economics 24, no. 4 (December 2004): 507–23. http://dx.doi.org/10.1016/j.irle.2005.01.007.

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12

Green, Michael D. "All You Ever Wanted to Know About Adequate Proof of Causation in Tort Law." Journal of European Tort Law 9, no. 3 (January 1, 2019): 308–24. http://dx.doi.org/10.1515/jetl-2018-0116.

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Abstract Proof of Causation addresses many contemporary and classical issues about causation and its proof in tort cases. This review explains the admirable depth, breadth, and scope of the book, along with the author’s assessment that would limit instances when the burden and standard of proof of causation are relaxed. In the final section, the review addresses the relative paucity of consideration by Proof of Causation of scientific evidence despite its increased importance in the contemporary toxic tort area.

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13

van Quickenborne, Marc. "Book Review: Unification of Tort Law: Causation." Maastricht Journal of European and Comparative Law 8, no. 2 (June 2001): 221–24. http://dx.doi.org/10.1177/1023263x0100800208.

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14

McInnes, Mitchell. "Causation in Tort Law: Back to Basics at the Supreme Court of Canada." Alberta Law Review 35, no. 4 (September 1, 1997): 1013. http://dx.doi.org/10.29173/alr1040.

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This article analyzes the role of causation in Canadian tort law. The author uses the recent Supreme Court of Canada decision of Athey v. Leonati as a model to show how even complex problems of causation can be solved through the application of fundamental principles of tort law: the "restoration" principle, the "take your victim" principle, and the "vicissitudes" principle. The author also demonstrates the importance of distinguishing types of causes based on the following dichotomies: tortious and non-tortious, sufficient and insufficient, and simultaneous and successive. The author argues that applying these principles, and distinguishing causes in this manner, will greatly simplify the resolution of even seemingly complex problems of causation in tort law.

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15

Steel, Sandy, and David Ibbetson. "MORE GRIEF ON UNCERTAIN CAUSATION IN TORT." Cambridge Law Journal 70, no. 2 (June 20, 2011): 451–68. http://dx.doi.org/10.1017/s0008197311000572.

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16

Papayannis, Diego M. "PROBABILISTIC CAUSATION IN EFFICIENCY-BASED LIABILITY JUDGMENTS." Legal Theory 20, no. 3 (September 2014): 210–52. http://dx.doi.org/10.1017/s1352325214000147.

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In this paper I argue that economic theories have never been able to provide a coherent explanation of the causation requirement in tort law. The economic characterization of this requirement faces insurmountable difficulties, because discourse on tort liability cannot be reduced to a cost-benefit analysis without a loss of meaning. More seriously, I try to show that by describing causation in economic terms, economic theories offer an image of the practice in which the participants incur in logical contradictions and develop patterns of inference that are far from intuitive. For this reason, efficiency cannot be the fundamental principle underlying tort law. Finally, I suggest that economic analysis of law can provide a genuine explanation of certain aspects of legal practice if it relinquishes its reductionist claims.

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17

Turton, Gemma, and Sally Kyd. "Causing controversy: interpreting the requirements of causation in criminal law and tort law." Northern Ireland Legal Quarterly 70, no. 4 (January 13, 2020): 425–44. http://dx.doi.org/10.53386/nilq.v70i4.242.

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The occurrence of a fatal road traffic collision may raise a number of legal issues and result in litigation both in the civil and criminal courts. The role of the different branches of law is distinct, with the aims of the litigation being quite different, but both require causation to be proved. Such cases are examined in this article as a vehicle for discussing how the principles of causation play out in each branch of law. It will be seen that the particular aims of the law dictate how doctrines of causation are applied, with particular problems caused by the legislature’s creation of strict liability offences. To resolve these problems, we propose that the criminal law borrow from negligence in adopting a test akin to the ‘harm within the risk’ test, adapting it to the role of the criminal law by formulating a ‘harm within the wrong’ requirement for causation.

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18

Benjamin, David M. "Elements of causation in toxic tort litigation." Journal of Legal Medicine 14, no. 1 (March 1993): 153–65. http://dx.doi.org/10.1080/01947649309510908.

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19

LUKHMANOV, M. I. "ESTABLISHMENT OF THE FACTUAL CAUSATION IN TORT." Civil Law Review 21, no. 5 (December 20, 2021): 86–132. http://dx.doi.org/10.24031/1992-2043-2021-21-5-86-132.

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The article examines the moral basis and significance of causation from the standpoint of corrective justice; the division of factual and legal causation, as well as the theory of conditio sine qua non and NESS test, are critically analyzed; the problems of the former are discussed, while the preference of the latter is justified, with special attention to the torts committed by omission; the relation of factual causation as a matter of substantive law to the procedural form of its reflection is established through the discussion of issues of allocation of burden of proof and standards of proof, as well as admissibility of scientific and statistical evidence of factual causation.

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20

Barnes, David W. "Too Many Probabilities: Statistical Evidence of Tort Causation." Law and Contemporary Problems 64, no. 4 (2001): 191. http://dx.doi.org/10.2307/1192295.

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21

Alexander, Larry A. "Causation and Corrective Justice: Does Tort Law Make Sense?" Law and Philosophy 6, no. 1 (April 1987): 1. http://dx.doi.org/10.2307/3504677.

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22

Steel, Sandy. "Justifying Exceptions to Proof of Causation in Tort Law." Modern Law Review 78, no. 5 (September 2015): 729–58. http://dx.doi.org/10.1111/1468-2230.12142.

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Alexander, Larry A. "Causation and corrective justice: Does tort law make sense?" Law and Philosophy 6, no. 1 (April 1987): 1–23. http://dx.doi.org/10.1007/bf00142638.

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24

Otradnova, Olesia. "Principles of European Tort Law (PETL) and Their Impact on Approximation of Ukrainian Tort Law to European Standards." Studia Iuridica 71 (November 20, 2017): 0. http://dx.doi.org/10.5604/01.3001.0010.5824.

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Ukraine has chosen its way of development towards Europe, European values and respect for human dignity and human rights. The signing of the Association Agreement in 2014 obliged Ukraine to harmonize its legislation in priority spheres of life with the legislation of the European Union. But legislative approximation should touch not only upon the fields of public law, but private law too and, in particular, tort law. The main problem of tort law approximation is that there are no joint tort rules in the EU. All attempts to harmonize tort law stopped at the creation of acts of “soft law” – general non-binding rules and principles. One of the most significant examples is the PETL – the Principles of European Tort Law. The PETL show a modern understanding of torts, spell out the conditions of tort liability, as well as other relevant requirements. Ukrainian rules of tort law do provide protection of a victim’s violated rights, however some recommendations of the PETL, such as provisions governing the conditions of tort liability, the understanding of causation and fault should be taken into account when Ukrainian tort law is modernised.

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25

Essary, Melissa. "Bostock: A Clean Cut into the Gordian Knot of Causation." SMU Law Review 75, no. 4 (2022): 769. http://dx.doi.org/10.25172/smulr.75.4.3.

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Regardless of merit, most individual employment discrimination claims die a fast death at summary judgment. Judges apply the fine mesh net created by McDonnell Douglas v. Green, and most cases are caught in its trap. This dated, obfuscatory Supreme Court case creates a complex and flawed binary approach to causation: either discrimination or an innocent reason caused an adverse employment action. For decades, all three levels of the federal judiciary have wrestled with McDonnell Douglas, creating snarls and knots in construing causation. Because of this causal confusion, the ideal of equal opportunity in employment is on life-support. Judges and practitioners must take note of Bostock v. Clayton County, a stunning Supreme Court case that lays a new foundation to clear this causal confusion. In this Article, I argue that Bostock creates a new mixed-motive paradigm that, if correctly applied, should transform individual discrimination law in this country by allowing juries to hear more cases. Bostock explicitly recognizes what the social sciences have long known: decision-making in the workplace is often complex, and both discriminatory and innocent reasons may be “but-for” causes of an employer’s adverse action against an employee. Tort law labels these “multiple sufficient cause” cases. In the first work of its kind, I apply the causation standards in Bostock to create a taxonomy of causation scenarios that should guide lower courts in their analysis of individual discrimination cases at pre-trial stages. As Bostock borrows its causation standards from tort law, this Article examines the nuances of that discipline to determine the legitimacy of Bostock’s causation discussion. I conclude that while Bostock conforms to tort law, the riddle of causation persists in that and almost every discipline. Still, Bostock’s causation logic is sufficient to guide courts into the future on firm ground. In the first comprehensive work of its kind, this Article assists courts by applying Bostock at each stage of litigation through jury trials. Bostock can help revive the ideal of equal opportunity in employment. I conclude the paper with tandem principled suggestions. First, I posit that the Court or Congress could create a burden-shifting scheme in multiple sufficient cause cases. Second, such a burden shifting of proof would pave the way for an allocation of fault scheme, similar to that found in tort law, whereby the plaintiff would recover those damages that correlate to the employer’s percentage of discriminatory causation.

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Knutsen, Erik S. "Causation in Canadian Insurance Law." Alberta Law Review 50, no. 3 (February 1, 2013): 631. http://dx.doi.org/10.29173/alr99.

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Causation in insurance law is an area where courts continuously experience difficulties. This is largely because in insurance law causation is used as a payouttrigger, a separate and distinct element from the traditional “but for” causation generally found in tort. This article proposes a framework for understanding the mechanics of causation as a payout trigger. This is done largely through a focus on the resulting loss and how it occurred. This framework also provides an opportunity to parse through the problems associated with concurrent causation (for example, when loss is caused by both smoke and fire after a lightning strike). Concurrent causation must be analyzed using a liberal approach derived from the Derksen case. The framework makes use of a temporal analysis to determine the relevance of a cause, working backward from the loss. In the final stages of the analysis, thelanguage used in the insurance policy must be interpreted using a purposive approach by considering drafting intent, as well as the consequences of coverage and its associated gaps. The article aims to streamline insurance causation analysis in order to promote more consistent and holistic results in insurance coverage disputes.

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27

Kaduk, Olha. "Causation as an Element of the Composition of the Offence in Private-Legal Relations." NaUKMA Research Papers. Law 8 (March 24, 2022): 26–33. http://dx.doi.org/10.18523/2617-2607.2021.8.26-33.

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In this article the author analyzes causation with the emphasis on tort relations. Nevertheless, causation is a fundamental concept that is applicable to all areas of law, especially causation in tort relations in Ukraine is the least examined issue.The basic conceptions of causation were overlooked, in particular the “but for” test and “conditio sine gua non” which establish that causation exists only in the case act or omission is a necessary antecedent for the concrete consequences. To fulfill the requirement of causation existence between the act or omission and the consequence, such causation should be direct. However, whether the causation is direct or not in tort cases is often left to judicial activism. So the main objective of this article is to specify certain instruments which can be used to establish the existence of causation. Moreover, there are certain burdensome obstacles that complicate this objective, such as when the consequences of the unlawful act or omission are unpredictable, when causation is interrupted by the act or omission of a third independent decision-maker or when there are multiple causes, which could lead to a particular consequence. Thereby, to reach that goal many approaches used in various jurisdictions were analyzed. Firstly, the predictability principle in the contract law settled in Hadley v. Baxendale and analogues of this principle in tort law were examined. Secondly, the dependence of the presence of a causation on the nature of consequence was analyzed with the reference to the case Jolley v. Sutton LBC. Thirdly, the difficulty of establishing causation in cases when causation is interrupted by the act or omission of independent decision-maker was managed to be addressed by means of analyzing the case of European Court of Justice Kone AG and Others v. ÖBB-Infrastruktur AG. Fourthly, “materially contributing cause”, developed in Athey v. Leonati was studied in context of multiple causation. To establish the existence of causation, the factor of predictability can be used, i.e. in the current situation, the reasonable bystander, who would be in the same circumstances as the offender, would have to anticipate the occurrence of the corresponding consequences. That is why, the consequences should not be “specific” or unpredictable.In case of multiple causes, the approaches to address the issue of causation differ significantly. For example, in the Anglo-Saxon legal family in case of multiple causes, it is sufficient to prove that one of them had greater impact on the occurrence of negative consequences than the others. Whereas in the practice of national courts, it is necessary to prove that one cause directly and indirectly affected the occurrence of a negative consequence and that in the case of multiple causes of a causal link, there is no causation.Thus, in cases where it is difficult to establish a causal link, it is necessary to use the principles developed by both the national practice and the practice of other jurisdictions. Neglecting such principles in establishing causation can lead to a violation of legal certainty and the rule of law in general.

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Yang, Fan, Ting Zhang, and Hao Zhang. "Adjudicating environmental tort cases in China: burden of proof, causation, and insights from 513 court decisions." Asia Pacific Journal of Environmental Law 21, no. 2 (November 2018): 171–89. http://dx.doi.org/10.4337/apjel.2018.02.05.

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Developing countries and countries with economies in transition have varying experiences in enforcing their national environmental law. China's judicial interpretations and legislation on environmental protection have established the rules that shift the burden of proof for causation in environmental tort litigation. However, this study of 513 court decisions from the people's courts at different levels in China shows that although the court decisions usually refer to or quote the rules that shift the burden of proof, in most cases the victim-plaintiffs still bear the liability to prove whether the causal relationship exists between the pollution and the harm. This study also finds that Chinese courts defer greatly to the evaluation report in proving causation. It suggests that the court practice of adjudicating environmental tort cases in China values more the factual causation of a pollution incident than the provisions regarding proof of causation stipulated by relevant laws. Consequently, such judicial practices hinder the effectiveness of judicial remedies for pollution victims in China.

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29

Peters, Sara M. "Shifting the Burden of Proof on Causation: The One Who Creates Uncertainty Should Bear Its Burden." Journal of Tort Law 13, no. 2 (November 18, 2020): 237–57. http://dx.doi.org/10.1515/jtl-2020-2009.

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AbstractWrongdoing does not only produce the harm that is the subject of a tort suit. It also necessarily produces uncertainty regarding what would have occurred without the wrongdoing. As a result, in proving causation, plaintiffs must overcome an information deficit that is not of their own making. From case to case, there is variation in the degree of uncertainty about causation, and in the extent to which that uncertainty is fairly attributable to the underlying tort. However, the degree of uncertainty tends to be high in cases where defendants failed to take reasonable precautions, since the plaintiff must construct, almost out of thin air, the counterfactual impact of the untaken precautions. Likewise, where underlying torts involve concealment or the failure to gather or seek information, the directly generate uncertainty. In such cases, where a defendant’s conduct substantially or directly generates uncertainty regarding causation, the burden of proof should be modified so that the uncertainty does not inure to the benefit of the wrongdoer. The impact of burden shifting in such scenarios would not be radical, costly, or harmful to the aims of justice. Causation, properly understood, is intended to be a minimum threshold requirement, wholly distinct from the negligence and scope-of-liability analyses. Relieving a plaintiff from the burden of proving causation would not relieve the plaintiff from proving negligence and proving that the negligence foreseeably gave rise to a risk of the harm that befell the plaintiff. The current allocation of the burden of proof on causation produces results that are intuitively and strikingly unjust. Courts should be more ready to shift the burden of proof to the wrongdoer.

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30

Bohdan, Karnaukh. "CAUSATION IN TORT LAW: THE CONCEPT OF NOVUS ACTUS INTERVENIENS." Entrepreneurship, Economy and Law 9 (2019): 11–15. http://dx.doi.org/10.32849/2663-5313/2019.9.02.

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31

Карнаух, Богдан Петрович. "Causation in Tort Law: Review of the “But For” Test." Problems of Legality, no. 147 (December 9, 2019): 75–84. http://dx.doi.org/10.21564/2414-990x.147.174065.

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32

EVSTIGNEEV, E. A. "PROBLEMS OF RELATION BETWEEN FAULT AND CAUSATION IN TORT LAW." Civil Law Review 20, no. 1 (February 29, 2020): 33–59. http://dx.doi.org/10.24031/1992-2043-2020-20-1-33-59.

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33

Englard, Izhak. "The Problem of Uncertain Factual Causation in Israeli Tort Law." Journal of European Tort Law 6, no. 1 (May 1, 2015): 1–23. http://dx.doi.org/10.1515/jetl-2015-0001.

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Lukhmanov, M. I. "Alternative Causation in Tort Law: Concept, Features and Main Sources." Herald of Economic Justice 17, no. 7 (2022): 104–19. http://dx.doi.org/10.37239/2500-2643-2022-17-7-104-119.

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Karnaukh, Bohdan P., and Artem R. Shymko. "SIDE EFFECTS OF DIETHYLSTILBESTROL (DES) FROM THE PERSPECTIVE OF TORT LAW." Wiadomości Lekarskie 73, no. 12 (2020): 2946–50. http://dx.doi.org/10.36740/wlek202012240.

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The aim of the article is to analyze the reasoning of the Supreme Court of California in Sindell v. Abbott Laboratories. Materials and methods: Materials of the study encompass US case law as well as case law of other countries concerning compensation of damage caused by defective drugs and other cases of uncertain causation. The survey is conducted within the framework of comparative law studies. In addition, elements of law and economics approach are also employed in the paper. Conclusions: Case of Sindell v. Abbott Laboratories has launched a new direction in discourse on causation in tort law and product liability. The mathematical elegance of the Court's theory is that net burden of liability borne by a particular drug manufacturer is equal to the amount of damage actually caused by its drug.

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Parker, Benjamin. "Tort Liability under Uncertainty. By Ariel Porat and Alex Stein. [Oxford: Oxford University Press. 2001. xii, 206 and (Index) 8 pp. Hardback. £50. ISBN 0–19–826797–5.]." Cambridge Law Journal 61, no. 3 (December 11, 2002): 715–38. http://dx.doi.org/10.1017/s0008197302261784.

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Over forty years have elapsed since Hart and Honore´ first lamented the uncertainties and confusions surrounding causation. There is little sign of improvement: only this year the Court of Appeal recognised that the application of orthodox principles of causation to mesothelioma (an asbestos-related disease) revealed “a major injustice crying out to be righted” (Fairchild v. Glenhaven Funeral Services Ltd. [2001] EWCA Civ 1881 [2002] 1 W.L.R. 1052, at [107]). The problem is particularly acute in tort claims for industrial injuries and medical negligence, where causal uncertainty is prevalent.

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Wojtczak, Sylwia, and Paweł Księżak. "Causation in Civil Law and the Problems of Transparency in AI." European Review of Private Law 29, Issue 4 (September 1, 2021): 561–82. http://dx.doi.org/10.54648/erpl2021030.

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Although a number of European Union legal documents require AI to be transparent, this is frequently not the case. Such opacity can be attributed to a diverse range of causes, ranging from so called ‘black box’ algorithms, trade secrets and patents, to the cognitive barriers of non-professionals. Transparency, in contrast, is, in many cases, indispensable for establishing generic or specific causation in deciding civil law cases, especially within the scope of contractual or tort liability. Therefore, the concept of causation applied in various parts of civil law should be rethought, and some remedies for this problem should be adopted.

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Bailey, SH. "‘Causation in negligence: what is a material contribution?’." Legal Studies 30, no. 2 (June 2010): 167–85. http://dx.doi.org/10.1111/j.1748-121x.2010.00155.x.

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This paper considers the principle that it is sufficient to establish causation in fact in tort to show that the defendant's act or omission made a material contribution to the harm. It examines the leading case, Bonnington Castings v Wardlaw, and other authorities and argues that the principle involves an application of the but-for test and not an exception to it. If exceptions to the but-for test are to be made, they should be clearly articulated and justified, as, for example, in Fairchild. A broad interpretation of ‘material contribution’ as establishing in some cases such an exception provides insufficient clarity and is certainly to be supported.

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Rijnhout, Rianka. "Mothers of Srebrenica: Causation and Partial Liability under Dutch Tort Law." Utrecht Journal of International and European Law 36, no. 2 (2021): 127–40. http://dx.doi.org/10.5334/ujiel.543.

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40

Cripps, Yvonne. "Negligence, Causation and Probability Theory." Cambridge Law Journal 46, no. 3 (November 1987): 389–90. http://dx.doi.org/10.1017/s0008197300117337.

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41

Briscoe, Alexandra. "Of Climate Change, Quantum Physics and Causation: Is it Time for a Probabilistic Approach to Causation in Tort Law?" Victoria University of Wellington Law Review 53, no. 2 (August 29, 2022): 159–84. http://dx.doi.org/10.26686/vuwlr.v53i2.7703.

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To date, the requirement that a plaintiff prove causation has hampered the success of tort-based claims against corporate greenhouse gas emitters. The need for an alternative approach to causation is clear. In recent years, courts and academics have engaged with the task of finding viable alternatives to the dominant "but for" test for causation. This article adds to that endeavour by proposing a new line of inquiry, grounded in approaches to causation that have emerged in scientific disciplines. It argues that the demise of deterministic theories of causation in science, and the rise of indeterministic and probabilistic alternatives, could be of interest to lawyers seeking a new approach to causation in law that is better tailored to the challenges of climate change. The article contends that courts' rigid application of the "but for" test is rooted in a Newtonian assumption that all things have a determinate cause. It advocates instead for a probabilistic approach, drawing on Fairchild v Glenhaven Funeral Services Ltd as evidence of its feasibility. Such an approach, it is argued, creates a real prospect of success for climate change litigants.

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Svoiak, Dmytro. "The value of the general tort in the process of proving the dispute." Slovo of the National School of Judges of Ukraine, no. 1(34) (July 5, 2021): 79–89. http://dx.doi.org/10.37566/2707-6849-2021-1(34)-7.

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In this article an author determines the composition of the general tort, which in modern domestic legal doctrine consists of harm, wrongful conduct of the perpetrator, the causal link between the actions of the perpetrator and the consequences of harm, and the fault of the perpetrator on the examples of scientific works and law enforcement practice,. It is pointed out that the court must establish all the elements of a general tort as a necessary condition for the occurrence of civil liability for damage caused by actions or omissions. Given the principle of adversarial proceedings, it is justified to clearly distinguish between the parties to the tort dispute the obligation to prove the presence or absence of a particular element of the general tort. There have been cases of incorrect borrowing from the decisions of the Supreme Court by the courts of lower instances of the citation on the distribution of such a duty and its use as mandatory to consider the conclusion when choosing and applying the rule of law to the disputed relationship. Meanwhile, the use of a separate phrase taken out of the context of a court decision in a particular case with the relevant parties, as mandatory to consider the conclusion, leads to the substitution of causation and affects the distribution of responsibilities for proving elements of a general tort between the parties. In this connection, the defendant is unreasonably obliged to prove not only his absence of guilt, but also his non-involvement in the damage. Although, according to scientific research, as well as a long-standing law enforcement tradition of proving the existence of damage, its size, illegal behavior of the perpetrator, the causal link between the damage and the wrongful acts of the perpetrator is the responsibility of the person who appropriately claims and asks to protect his/her violated right. Keywords: general tort, damage, reparation, obligation to prove, composition of the tort, causation, guilt.

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Lombardi, Claudio. "Book Review: Proof of Causation in Tort Law, by Sandy Steel." European Review of Private Law 26, Issue 5 (October 1, 2018): 713–15. http://dx.doi.org/10.54648/erpl2018047.

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van Dunné, Jan M. "Liability for Pure Economic Loss: Rule or Exception? A Comparatist's View of the Civil Law - Common Law Split on Compensation of Non-physical Damage in Tort Law." European Review of Private Law 7, Issue 4 (December 1, 1999): 397–428. http://dx.doi.org/10.54648/256434.

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In tort law 'pure economic loss', in the absence of physical damage caused to the plaintiff, is a complicated concept, and liability is difficult to establish (eg false information, negligent services, or 'cable' cases). Under civil law liability is accepted in principle, although with exceptions, whereas in common law this kind of damage traditionally is rejected, and accepted in exceptional cases only. This situation, however, is changing rapidly in the former British dominions. The discussion includes policy issues, such as the 'floodgates' argument and the modern use of old concepts as negligence and causation.

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Miller, Chris. "Causation in personal injury: legal or epidemiological common sense?" Legal Studies 26, no. 4 (December 2006): 544–69. http://dx.doi.org/10.1111/j.1748-121x.2006.00029.x.

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The approach adopted by epidemiologists when attributing a causal mechanism to an observed statistical association is contrasted with the common law of causation in personal injury cases. By recognising the need to distinguish between probabilistic measures of (1) the strength of an association and (2) the fact-finder’s ‘degree of belief’ in the claimant’s causal hypothesis, the verdicts in a number of epidemiology-based cases, mostly in British courts, are shown to be questionable. The argument is then made for a wider application of proportionate liability, extending beyond defective drug cases (where epidemiological evidence is most often found) to medical negligence, occupational injury and tobacco-related litigation. An increased coherence in the common law of personal injury can be achieved without compromising the fundamental aims of tort and, it is argued, by reaffirming the importance of just one ‘policy’ precedent on liability for increasing risk.

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BLACK, BERT. "MATCHING EVIDENCE ABOUT CLUSTERED HEALTH EVENTS WITH TORT LAW REQUIREMENTS." American Journal of Epidemiology 132, supp1 (July 1, 1990): 79–86. http://dx.doi.org/10.1093/oxfordjournals.aje.a115793.

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Abstract This paper addresses the use of epidemiologlc evidence when a cluster becomes the focus of dispute in court it is often difficult to prove by a preponderance of the evidence that an exposure for which a defendant is responsible caused the disease or diseases at issue. Thus, in a number of cases plaintiffs have resorted to nontradttional science, such as clinical ecology, or to questionable extrapolations from animal test data. Other plaintiffs have sought to avoid the traditional causation requirement by making claims based on risk or fear of future disease. Courts have begun to exclude evidence of dubious scientific validity, and they are beginning to grapple with fear and risk claims. These are heartening developments because justice requires that legal decisions be in accord with scientific reality.

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DE JONG, Elbert R. "Tort Law and Judicial Risk Regulation: Bipolar and Multipolar Risk Reasoning in Light of Tort Law’s Regulatory Effects." European Journal of Risk Regulation 9, no. 1 (March 2018): 14–33. http://dx.doi.org/10.1017/err.2017.75.

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AbstractAlthough judicial decisions in tort law primarily determine the (correlative) responsibilities and liabilities of the proceeding parties, they also have regulatory effects on non-litigants. In this contribution, these regulatory consequences of tort law will be analysed in light of a court’s quest when it decides a tort claim involving (uncertain) risks. It will be argued that decisions in tort law about uncertain risks involve the possible occurrence of a false positive (eg accepting liability for a non-existing risk) and a false negative (eg denying liability for a real risk). False positives and false negatives have adverse consequences for the parties to the proceedings but, bearing in mind the regulatory effects of tort adjudication, potentially also for non-litigants. While courts might want to avoid both, scientific uncertainties and complexities make it difficult for them to assess to what extent there is a chance of either a false positive or a false negative occurring. Therefore, they necessarily need to determine which party bears the risk of the involved errors. In addition, the question arises whether courts should also take the potential regulatory consequences of their rulings into account and, if yes, how? To that purpose, they can employ a bipolar reasoning style and a multipolar reasoning style. Although tort law is about determining the applicable rights and obligations between the plaintiff and defendant (bipolar reasoning), in light of the regulatory implications of tort law and developments in several tort systems, the relevance of considerations transcending this bipolar relationship (multipolar reasoning) is increasing. However, the possibilities for courts to engage in multipolar reasoning are restrained by the bipolar nature of tort law which gives rise to information and specialism deficits. This will be illustrated by referring to issues in relation to setting the standard of care and examining causation.

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Nykolaishen, Sarah, and Nigel Bankes. "The Jurisdiction of the Alberta Surface Rights Board Under Section 30 of the Surface Rights Act." Alberta Law Review 49, no. 1 (July 1, 2011): 1. http://dx.doi.org/10.29173/alr125.

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This article examines the jurisdiction of the Surface Rights Board of Alberta to award damages under section 30 of the Surface Rights Act. Section 30 provides owners and occupiers with a statutory cause of action for losses or damages caused to their lands through the activities of an operator. In examining and contrasting jurisprudence under section 30 of the Surface Rights Act with common law tort causes of action, the authors opine that while section 30 does not prevent an owner or occupier from bringing a tort action in relation to loss or damage, a tort action may not be a viable option. The authors therefore propose that in particular situations, section 30 of the Surface Rights Act provides an alternative cause of action through which an owner or occupier may seek damages. The article concludes by finding that section 30 possesses a lower threshold regarding the elements of the cause of action as well as the issue of causation in comparison to common law tort causes of action.

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Noee, Elyas, Mohammad Noee, and Azadeh Mehrpouyan. "Attribution of Liability among Multiple Tortfeasors under Negligence Law: Causation in Iran and England." Journal of Politics and Law 9, no. 7 (August 30, 2016): 219. http://dx.doi.org/10.5539/jpl.v9n7p219.

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“Causation” possesses a considerable place in tort law of Iran and England particularly in the field of Negligence law. Existing differences in legal systems of Iran (as a Civil Law system) and England (as a Common Law system) make find a common perspective difficult to study causation but possible. This research focuses to compare causation in cases where more than one tortfeasors is involved in inflicting damage by negligence. This study also attempts to recognize differences and similarities between Iran and England in order to resolve ambiguities in Iran legal system through England legal system. The study was conducted in three sections including tortfeasors’ indenpendancy, tortfeasors’ contribution, and tortfeasors’ separate impact. This paper reports respectively: in case of tortfeasor independency, Iran law admits jointly and severally liability while England law offers a variety of approaches in various cases; in case of tortfeasors’ contribution, each tortfeasor is liable according to its effect on causing damage with few exceptions; and in case of tortfeasors’ separate impact, per tortfeasor is liable for inflicted damage which is only from oneself side. The results show England law can be considered to filling legal gap of Iran law regarding present identified differences and similarities.

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Gilboa, Maytal. "MULTIPLE REASONABLE BEHAVIORS CASES: THE PROBLEM OF CAUSAL UNDERDETERMINATION IN TORT LAW." Legal Theory 25, no. 2 (May 29, 2019): 77–104. http://dx.doi.org/10.1017/s135232521900003x.

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ABSTRACTThis article introduces a significant yet largely overlooked problem in the law of torts: causal underdetermination. This problem occurs when the causal inquiry of a but-for test produces not one but two results, which are contradictory. According to the first, the negligent defendant is the likely cause of the plaintiff's injury, whereas according to the second, she is not. The article explains why causal underdetermination has escaped the radar of tort scholars and is perceived by courts as lack of causation. It demonstrates that the current practice in cases of causal underdetermination might lead to erroneous decisions, absolving negligent defendants of tort liability even when the evidence suggests that they are in fact the likely cause of the plaintiff's injury. This, in turn, the article asserts, may not only lead to underdeterrence among potential defendants, but also encourage manipulative litigation strategy to escape liability in retrospect. The article then proposes solutions that contend with causal underdetermination and resolve the difficulties that the current practice entails.

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