Uncertain Causation – Too Uncertain: On Its Assessment, Compensation on the Basis of Probability and Preponderance of Evidence in the Law of Torts
Bar Ilan Law Review (Hebrew), Mechqarei Mishpat, ed., Vol. 23, pp. 855-901, 2007
47 Pages Posted: 30 Nov 2009 Last revised: 29 Dec 2014
Date Written: 2007
The Supreme Court of Israel has in the past ruled partial compensation according to relative liability in cases of loss of chances of recovery in actions that result from medical malpractice in the framework of an operation or treatment, at the sum of the loss of chances of recovery estimated by the court to have been caused to the plaintiff. Cases in which it is claimed that the defendant increased the danger to the plaintiff of becoming ill with a certain disease or being hurt in some other fashion (such as an environmental ill) and of experiencing damage have also been adjudicated before the Supreme Court, but until recently there has been no ruling on these cases. Since this is a tort that is not complete, since the base of a causal link between the tortious action and the damage has not been proven at a balance of probabilities, there is great importance to the definition of the criteria, if any, that must be met in order for increased risk to be recognized as a head of damage. The Supreme Court in the case Malul v. Karmel Hospital (March 2005) which dealt with medical malpractice went even farther than the most far-reaching approaches in the academic and judiciary literature that had preceded the decision. This is a problematic ruling, that seems to allow compensation for increased risk in many cases even when the plaintiff brings no statistical-scientific evidence to prove the rate of increased risk and also, seemingly, in cases in which the factor increasing the risk is not significant. This ruling has many implications: its application covers all of tort law and in effect all the fields of civil law, as it is a ruling on evidence law. It may remove the bases on which the civil-tort law system rests, as a system that relies on the balance of probabilities, being based on estimation and appraisal based apparently only on the principles of justice and not on probability. This ruling has no support in any system of law to which the Israeli courts refer for comparison.
In the opinion of the authors, in a case where it is fundamentally impossible to prove whether a possible factor actually participated in the process of causing the damage, there may be no reason, in principle, to invalidate making use of the doctrine of damage to chances and increased risk, in order to provide an answer for the injured; however, it is the duty of the court to make sure, first and foremost, that the requirement for inherent evidential ambiguity is fulfilled to justify adopting this alternative head of damages. The courts should insist that the plaintiff indicate in a reliable fashion, even by estimation, the portion that can be attributed to the tortious actions of the defendant, since otherwise the court will have no tools to indicate the amount of increased danger and the estimation that it makes will be vague. The ruling creates difficulties such as a concern for flooding the courts (when actions are filed even in negligible cases) and making actions more expensive. Without insisting upon clear criteria that limit the ruling, this ruling may create great confusion in tort law and in civil law in general.
The authors propose two alternative solutions, one relying on transferring the burden of proof to the defendant in appropriate cases, and the other insisting upon tight criteria whose goal is to prevent bursting the sluice-gates and the collapse of the balance of probabilities test in tort law and in civil law in general.
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