Loss of Chances in Cases of Uncertainty Regarding Tortious Harm to an Interest
Tel Aviv University Law Review (Eiunei Mishpat), Vol. 27, pp. 323-356, 2003 (Hebrew)
20 Pages Posted: 30 Nov 2009 Last revised: 29 Dec 2014
Date Written: November 27, 2009
This article both assumes a close relationship among legal rules, procedures, and investigation methods and enters a caveat (within a particular context) against the construction of a legal theory on the basis of statistical data substituted in a-priori formulae, without clearly defining the method that may yield these data.
Prof. Ariel Porat has recently advocated an extensive application of the doctrine of “Compensation for Loss of Chances” in tort law. This doctrine is not an autonomous legal structure. It is, rather, inter-linked and dependent upon epidemiological studies and probabilistic estimations. In the authors’ opinion, some of Porat’s arguments may be undermined from his failure to pay attention to the crucial connection between this doctrine, on the one hand, and the epidemiological studies and estimations, on the other hand.
The article focuses on one of the situations presented by Porat: cases in which a wrongful act was certainly committed by the defendant, but in which there is uncertainty as to whether that act caused the damage inflicted upon the plaintiff. A close examination of the two examples provided by Porat in support of the application of the doctrine in such cases reveals that, at least in some types of examples, one can not reliably estimate the effect of a single factor on the probability that a person would incur a sickness. The estimation of the probability that a particular factor actually caused the damage is hindered by the difficulty in designing a reliable experiment (which is related, in turn, to the problem of identifying the relevant populations and their characteristics) and the difficulty in isolating, at a reasonable level of reliability, the effect of a single factor (possibly a defendant) from other factors, known or unknown, that may have taken part in bringing about the damage. These problems affect the element of causality, which is a necessary requirement in the torts of negligence, fraud, or negligent misrepresentation.
In the absence of these problems, it would have been theoretically possible to obtain empirical results that might have supported compensation for loss of chance, in cases involving uncertainty as to whether the wrongful act caused the inflicted damage. However, the inherent complication and sometimes impossibility of producing reliable probability estimations, undermines in such cases the methodological foundation for the calculations necessitated by the Compensation for Loss of Chances Doctrine.
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