Tort Liability Under Uncertainty

by Porat, Ariel; Stein, Alex

• ISBN13: 9780198267973
• ISBN10: 0198267975
• Format: Hardcover
• Copyright: 2002-02-07
• Publisher: Oxford University Press

Summary

Uncertainty is present in virtually every tort litigation. Generally, courts tackle the uncertainty problem by requiring the plaintiff to prove his case by the preponderance of the evidence. However, on numerous occasions tort plaintiffs encounter systematic difficulties in establishing theirallegations against defendants. This phenomenon is prevalent in the area of mass torts, which occupies the centre of the tort law agenda in the past three decades. In this area, victims of torts systematically fail to establish their lawsuits against wrongdoers even when it is clear that the latterare responsible for enormous damages. The uncertainty problem is not limited to the mass tort context. In many other contexts, tort and evidence law doctrines also fail to offer satisfactory solutions to that problem. Typically, this failure occurs in cases that involve indeterminate causation, anevidentiary barrier that prevents factual attribution of the litigated damage to the defendant's wrongdoing. Due to this failure, victims of torts are left under-compensated and their wrongdoers under-deterred. This book provides a comprehensive treatment of the problem of uncertainty in torts at both doctrinal and policy levels. It presents and critically examines the existing doctrinal solutions of the problem. It also offers a number of original solutions to the problem, such as imposition of collectiveliability and liability for evidential damage. The book combines the traditional doctrinal depiction of the law, as evolved in England, Canada, United States, and Israel, with general theoretical insights that include economic analysis.

Author Biography

Alex Stein is Professor of Law at The Hebrew University of Jerusalem.

Table of Contents

Acknowledgements

List of Cases

Introduction

Liability Under Uncertainty: Allocating the Risk of Error

The Nature of the Problem

Burden of Proof and Utility

Burden of Proof and Fairness

Special Cases

Two Interpretations of the Civil Standard of Proof

The Tension Between the Burden of Proof and Tort Law Objectives

Cases of Wrongful Damage where the Wrongdoer is Unidentifiable

Cases of Wrongful Damage where the Injured Party is Unidentifiable

Cases of Wrongful Conduct that may or may not have Resulted in Damage

Cases of Damage Wrongfully Inflicted by Separate Wrongdoers

Cases of Damage Originating both from a Wrongdoer and a Non-Wrongful Cause

Res Ipsa Loquitur

Res Ipsa Loquitur and Statistical Negligence

Strong Presumption or Weak Presumption?

Res Ipsa Loquitur and the Cheapest Cost-Avoider

Res Ipsa Loquitur and Liability for Uncertainty

Conclusion

Risk as Damage

The Nature of the Problem

Liability for Bare Risk

Liability for Lost Chances

Conclusion

Collective Liability

The Nature of the Problem

Is Collective Liability Justified?

Collective Liability under Corrective Justice

Collective Liability and Deterrence

Spreading the Damage

Incentives for Revealing the Truth

Coda

Liability for Uncertainty: Making Evidential Damage Actionable

The Nature of Evidential Damage

Evdential Damage, Corrective Justice, and the Law of Negligence

Evidential Damage and Deterrence

The Evidential Damage Doctrine: Applications and Evaluation

Cases of Wrongful Damage where the Wrongdoer is Unidentifiable

Cases of Wrongful Damage where the Injured Party is Unidentifiable

Cases of Wrongful Conduct that may or may not have Resulted in Damage

Cases of Damage Wrongfully Inflicted by Separate Wrongdoers

Cases of Damage Originating both from a Wrongdoer and a Non-Wrongful Cause

Index

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