REVIEWS
| Published date | 01 March 2003 |
| Date | 01 March 2003 |
| DOI | http://doi.org/10.1111/1468-2230.6602009 |
REVIEWS
Ariel Porat and Alex Stein, Tort Liability Under Uncertainty,Oxford:Oxford
University Press, 2001, xii þ214 pp, hb d50.00.
Ariel Porat and Alex Stein have written an exceptionally lucid, challenging and
innovative book about an important legal topic: the allocation of tort liability in
cases involving uncertain facts. Confining themselves to English and American
tort doctrines (p 1), the authors examine the ‘solutions’ that the law has already
developed to the uncertainty problem, aiming ‘to place these solutions on a
principled footing and to supplement them with a comprehensive treatment of the
uncertainty problem’ (p 11). Though the authors claim that their book ‘provides a
comprehensive and updated doctrinal picture’ of those solutions (p 13), they state
that their primary objective is normative rather than expository: they hope to
contribute ‘by offering a systematic analysis of the problem and by identifying the
ways in which it can be resolved’ (p 13). Of the latter, the most striking is the
advocacy of their novel creation, the ‘evidential damage’ doctrine which they
argue should be applied to ‘cases in which the existing uncertainty and the
consequent inability of the court to determine the facts accurately result from a
person’s wrongful conduct’ (pp 14–15). The intellectual posture of the authors and
the most likely audience to appreciate their achievements are flagged by their
sanguine embrace of ‘ideal’ theoretical models and their statement that ‘our
discussion and proposals rest upon two principal theories of tort liability: that of
deterrence and that of corrective justice’ (p 11). No room here for ‘mixed’ theories
of the common law that seek to capture its diversity of concerns!
The succinct and excellently structured text is broken into seven chapters.
Chapter 1, titled ‘liability under uncertainty: allocating the risk of error’, evaluates
the preponderance-of-the-evidence standard under which ‘the party whose
evidence preponderates that of her opponent must prevail’ (p 18). After a
rigorous analysis and application of the two ideal models of tort, this basic civil
proof rule is found to be ‘both generally efficient and justified on grounds of
equality and corrective justice’ (p 57, emphasis added). This is not a surprise.
Deterrence theory and corrective justice have both been constructed by ‘high’ tort
theorists to have remarkable ‘give’ in their ability to rationalize existing tort rules.
Chapter 2 notes that in some exceptional cases there is a ‘tension between the
burden of proof [rule] and tort law objectives’ (chapter title). While tort law has
developed exceptional rules to supplement the basic civil proof rule, the authors
argue that there remain five classes of fact situation where even these special rules
do not provide a satisfactory outcome when judged by deterrence and corrective
justice criteria. These are described as:
(a) Cases of wrongful damage where the wrongdoer is unidentifiable (p 58). This
class is confined to cases where all sources of risk are wrongful (that is why we
know the damage is wrongful and that the victim is injured by a wrong), but we
know that only one source is involved in the production of the damage. Cook v
Lewis [1951] SCR 830 is a Commonwealth example.
(b) Cases of wrongful damage where the injured party is unidentifiable (p 70).
This class is given a confusing title by the authors. For example, one case they cite
as in class b is where the defendant’s wrongful conduct adds 25 per cent more risk
rThe Modern Law Review Limited 2003 (MLR 66:2, March). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK, and 350 Main Street, Malden, MA 02148, USA.
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