The Possibility of Compensation for Health Damage in Cases of Uncertain Causes within the Victim’s Sphere

Egle Kalev

Abstract


In numerous cases of harm to health, the inability to establish factual causation may be a serious obstacle to the plaintiff’s success, because of causal uncertainty. In cases of uncertain causation, the standard rules of causation are often evaded and the plaintiff can only resort to the probability of the defendant having caused the damage. The question is what the optimal solution should be in the case wherein the victim is only able to establish that the damage was probably caused by the defendant’s unlawful act. To this end, I pose two main questions. Firstly, what are the uncertain causes in the victim’s sphere, and how do the various causes affect the plaintiff’s chances of obtaining compensation? Secondly, how does the use of different approaches to paying damages, such as the all-or-nothing theory versus partial liability, affect the plaintiff’s prospect of getting compensation from the defendant? I have chosen to focus predominantly on analysing the practice in the common-law countries to identify whether there are solutions for the issues dealt with in the article that are worth applying in the Estonian legal system and in the countries in continental Europe generally.


Keywords


factual causation; causal uncertainty in the victim’s sphere; partial liability; the plaintiff’s pre-existing health condition; noxious habits; aetiology of the disease; tort law

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DOI: https://doi.org/10.12697/JI.2014.21.19

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Journal DOI: http://dx.doi.org/10.12697/issn1406-1082
ISSN 1406-1082 (printed matter)
ISSN 1406-5509 (online)

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