9 - Risk, causation, and harm

Summary

PROBABILITIES AND LIABILITIES

Tort law is deterministic in its view of causal relationships. The basic paradigm is A causes harm to B, with “causes” denoting some fixed, and fully determined (at least ex post), relationship between act and injury. Variants of the model deal with direct and indirect causal connections, the latter sometimes taking bizarre forms as every first year law student learns to his discomfiture upon encountering the subject of proximate cause. But in most cases the underlying assumption is one of determinism: in whole or in part A did or did not cause the harm. Uncertainty is acknowledged, but relegated to issues of proof; probabilities are seen as “evidence” questions, not as part of the fabric of liability rules.

A change in this perspective can be detected, albeit dimly, with the recent emergence of “toxic torts” – including environmental and various products-related harms. The Agent Orange, DES, asbestos cases, to mention only a few prominent disasters of recent years, have made students of tort law more aware of the indeterminacy of causal relationships for many types of modern torts and a growing scholarly literature recognizes the need for tort law to accommodate the probabilistic character of many injuries. The courts for their part have resisted the idea of such an accommodation.