Abstract:

The problem of uncertain causation has been one of the most debated topics of tort law in recent years. This article focuses on the so-called alternative causation, where it is not possible to definitely prove how an injury occurred, but it is possible to prove that one of the few possible explanations as to how the injury occurred holds true. Courts in many legal systems had to deal with the issue in a number of cases and struggled as to how liability in such cases should be apportioned. The issue has also been dealt with by a number of draft codes and by rules prepared with the vision to harmonize tort law. In recent years one can easily observe an increasing tendency of rejecting the classical approach, according to which none of the possible perpetrators can be held liable due to lack of proof. Alternative solutions to the problem include joint and several liability of the possible perpetrators and the so-called proportional liability, according to which each tortfeasor is held liable in proportion to the probability that they have caused the injury. This paper firstly gives an overview of the problem of alternative causation, secondly explains the proposed solutions to the problem by giving examples from different jurisdictions and finally provides an analysis of these solutions concluding that the problem shall be divided into groups of cases, to determine which of the proposed solutions (no liability; joint and several liability and proportional liability) offers a fair outcome.