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

• Author: Egle Kalev
• Pages: 206-217

206 JURIDICA INTERNATIONAL 21/2014

Egle Kalev

Doctoral Student

University of Tartu

The Possibility of Compensation

for Health Damage in Cases

of Uncertain Causes within

the Victim’s Sphere

1. Introduction

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.*1 In most tort cases, the victim must prove by a

preponderance of the evidence that the tortfeasor’s behaviour or act was a factual cause of the harm to

the plaintiff.*2 Yet, in certain kinds of situations, it is diff‌i cult or even impossible to prove the aforesaid.*3

In cases of uncertain causation*4, the standard rules of causation are often evaded*5 and the plaintiff can

only resort to the probability of the defendant having caused the damage. The defendant’s liability to pay

damages for the plaintiff’s illness that was probably caused by the defendant’s breach of duty, as in the

infringement of compulsory regulations on occupational safety, is quite a confusing issue, especially when

uncertain causes appear within the victim’s sphere. An example of the latter is the scenario wherein the

plaintiff’s health had already been weak prior to the defendant’s infringement of regulations. The main aim

of this paper is to identify victims’ chances to receive compensation for health damage in cases of uncer-

tain causation pursuant to Estonian law and the case law of the Supreme Court of Estonia. In other words,

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 ques-

tions. Firstly, what are the uncertain causes in the victim’s sphere, and how do the various causes affect

1 A. Fenyves et al. Tort law in the jurisprudence of the European Court of Human Rights. – Tort and Insurance Law, Vol. 30.

Berlin 2011, p. 72 – DOI: http://dx.doi.org/10.1515/9783110260007; M.A. Berger. Eliminating general causation: Notes

towards a new theory of justice and toxic torts. – Columbia Law Review 97 (1997)/VII, p. 2117.

2 S. Deakin et al. Markesinis and Deakin’s Tort Law, 6th ed. Oxford: Clarendon Press 2008, p. 323; L. Wahlberg. Legal

Questions and Scientif‌i c Answers: Ontological Differences and Epistemic Gaps in the Assessment of Causal Relations. PhD

thesis, Lund 2010, p. 17.

3 S.M. Samii, A. Keirse. Taxonomy of asbestos litigation in the Netherlands: Duelling with causal uncertainty. – European

Review of Private Law 2013/1, pp. 354–355.

4 Uncertain causality cases include, for example, those involving medical malpractice, competition, asbestos-related matters, lost

or stolen lottery tickets, and lawyers’ professional liability cases. See T.K. Graziano. All or nothing or partial liability in cases of

uncertain causation. – European Private Law 2008/6, pp. 1013–1016.

5 J. Stapleton. Occam’s razor reveals an orthodox basis for Chester v. Ashfar. – Law Quarterly Review 122 (2006), p. 427, as

cited in S. Deakin et al. (see Note 2), pp. 261, 265.

http://dx.doi.org/10.12697/JI.2014.21.19