We live in a world where there is often significant uncertainty about the causes of things. If the law demanded that the victims of injuries prove what certainly caused their injuries, few victims would be able to obtain compensation from those who have wrongfully injured them. But what rules should govern uncertainty over causation in attributing liability to pay compensation?
A new book by Wadham Fellow in Law Sandy Steel, Proof of Causation in Tort Law, explores and compares the interestingly divergent answers to this question one finds in English, French, and German tort law. It defends – as a general rule – the standard common law position that claimants should prove on the balance of probabilities that the defendant’s wrongful conduct was a cause of their injury in order to recover compensation. In doing so, it argues against the higher standards of proof employed by French and German law and against rules which seek to distribute liability to compensate directly in proportion to the probability that the defendant was a cause of the claimant’s injury.
The book is concerned with whether, and in what situations, any exceptions should be made to this general position that claimants have the burden of proving causation on the balance of probabilities.
Sandy explains one example of this: “The book’s front cover recalls a classic case where two people negligently fire in the direction of a victim. One strikes the victim, but because of the simultaneity of the firing and the similarity of the bullets, it is impossible to demonstrate on the balance of probabilities which person’s bullet injured the victim (each defendant can argue that it was equally likely that the other caused the injury). Many people have a strong intuition that each defendant should not be permitted to rely upon the other’s wrongful conduct to leave the victim without any redress here. Part of my book tries to unearth the principle behind this intuition and show that we can carve out a fair and clear exception in such cases without undermining the general rule.”