CAUSAL UNCERTAINTY: ALTERNATIVE CAUSATION IN TORT LAW

Abstract

The causal link between the tortfeasor’s unlawful act and the resulting damage is an essential element of tort liability. There are situations in tort law practice where singular damage has more than one potential cause, so it is important to determine which one is legally relevant. In those situations, it is hard for the claimant to identify the tortfeasor. Moreover, proving the causal link is difficult or almost impossible. On the contrary, the tortfeasor can successfully object that the damage cannot be attributed to him/her. European courts and doctrine have developed theories about alternative causation firstly by addressing asbestos litigation. This paper presents solutions from English, Belgian, French, German and Dutch tort law. Although they all strive for the same goal - fair compensation, the diversity of methods and outcomes is surprising. The end of the paper is devoted to the Principles of European Tort Law (PETL), where optimal suggestions on how to overcome causal uncertainty are presented.