Tort Liability Under Uncertainty

Hardcover | November 1, 2001

byAriel Porat, Alex Stein

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Uncertainty is present in virtually every tort litigation. Generally, courts tackle the uncertainty problem by requiring the plaintiff to prove his case by the preponderance of the evidence. However, on numerous occasions tort plaintiffs encounter systematic difficulties in establishing theirallegations against defendants. This phenomenon is prevalent in the area of mass torts, which occupies the centre of the tort law agenda in the past three decades. In this area, victims of torts systematically fail to establish their lawsuits against wrongdoers even when it is clear that the latterare responsible for enormous damages. The uncertainty problem is not limited to the mass tort context. In many other contexts, tort and evidence law doctrines also fail to offer satisfactory solutions to that problem. Typically, this failure occurs in cases that involve indeterminate causation, anevidentiary barrier that prevents factual attribution of the litigated damage to the defendant's wrongdoing. Due to this failure, victims of torts are left under-compensated and their wrongdoers under-deterred. This book provides a comprehensive treatment of the problem of uncertainty in torts at both doctrinal and policy levels. It presents and critically examines the existing doctrinal solutions of the problem. It also offers a number of original solutions to the problem, such as imposition of collectiveliability and liability for evidential damage. The book combines the traditional doctrinal depiction of the law, as evolved in England, Canada, United States, and Israel, with general theoretical insights that include economic analysis.

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From the Publisher

Uncertainty is present in virtually every tort litigation. Generally, courts tackle the uncertainty problem by requiring the plaintiff to prove his case by the preponderance of the evidence. However, on numerous occasions tort plaintiffs encounter systematic difficulties in establishing theirallegations against defendants. This phenome...

Professor Ariel Porat is Professor of Law at Tel-Aviv University. Professor Alex Stein is Professor of Law at The Hebrew University of Jerusalem

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Format:HardcoverDimensions:226 pages, 9.21 × 6.14 × 0.71 inPublished:November 1, 2001Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0198267975

ISBN - 13:9780198267973

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Table of Contents

Introduction1. Liability Under Uncertainty: Allocating the Risk of Error2. The Tension Between the Burden of Proof and Tort Law Objectives3. Res Ipsa Loquitur4. Risk as Damage5. Collective Liability6. Liability Under Uncertainty: Making Evidential Damage Actionable7. The Evidential Damage Doctrine: Applications and Evaluation

Editorial Reviews

`In this splendid little volume, Porat and Stein have produced an extremely interesting and compelling argument... displays a commendable depth of research and analysis... a very interesting thesis that deserves to be read by anyone who thinks seriously about tort.'22(3) Legal Studies