Proof of causation in toxic tort

Abstract

The imputation of legal liability involves a retrospective judgement. This implies that the contravention of an ex post postulated duty of care could result in legal liability if a causal connection obtains between that contravention and a certain result or damage. The legal concept of causality is governed by the criterion of ‘reasonable attribution’. However open-ended this criterion may be, establishing causality can sometimes involve rather difficult interpretative problems. These problems obtain (occur?), for example, in cases where, during the time span between act and result, a number of intervening factors have occurred that may also have contributed causally to the result. The concept of causality is considered as one of the ‘objective’ conditions for legal liability. Nonetheless, in the more difficult cases, it appears to be partly filled in with normative factors, such as duties of care and related views on the socio-ethical responsibility of the defendant for the damage. The open-endedness of the criterion of reasonable attribution opens up a helpful room for manoeuvre, but it simultaneously raises questions with regard to legal certainty: what possible remote consequences does one have a legal duty to calculate in, and to what measure can normative factors be allowed to contribute to the establishment of causality?