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Causal uncertainty is a wide-spread phenomenon. Courts are often
unable to determine whether a defendant's tortious conduct was a
factual cause of a plaintiff's harm. Yet, sometimes courts can
determine the probability that the defendant caused the plaintiff's
harm, although often there is considerable variance in the
probability estimate based on the available evidence. The
conventional way to cope with this uncertainty has been to apply
the evidentiary rule of 'standard of proof'. The application of
this 'all or nothing' rule can lead to unfairness by absolving
defendants who acted tortiously and may also create undesirable
incentives that result in greater wrongful conduct and injustice to
victims. Some courts have decided that this 'no-liability' outcome
is undesirable. They have adopted rules of proportional liability
that compensate plaintiffs according to the probability that their
harm was caused by the defendant's tortious conduct. In 2005 the
Principles of European Tort Law (PETL) made a breakthrough in this
regard by embracing rules of proportional liability. This project,
building on PETL, endeavours to make further inquiries into the
desirable scope of proportional liability and to offer a more
detailed view of its meaning, implications, and ramifications.
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