PROBABILISTIC CAUSATION IN TORT LAW

Authors

  • JOHN G FLEMING

Keywords:

Tort Law

Abstract

The traditional requirement of proof of causation on a balance of probabilities is being challenged, in cases ranging from toxic pollution to medical negligence, by tort plaintiffs whose success depends on acceptance of "probabilistic" rather than "particularistic" evidence based on epidemiological and other statistical data falling below 50% probability. Courts in various jurisdictions have experimented with devices such as reversal of onus of proof against negligent defendants, recognition of mere risk of injury as a cause of action and damages proportioned to the degree of probability or chance. Recent pronouncements by the House of Lords oppose this trend.

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Published

1989-12-01

Issue

Section

Legal Commentary