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

Author:Egle Kalev
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 dif 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:; 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 Scienti 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.

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