A proposal to optimize the distribution of the costs of damages in the face of causal uncertainty

Abstract

The traditional binary logic of “all or nothing” addresses the problem of causal uncertainty by attributing responsibility to only one of the parties involved: to the agent possibly causing the harm, when lowering the usual standard of proof it affirms the existence of the doubtful causal link; or to the victim, when maintaining the usual standard of proof it denies the causal link. The probability of the lost opportunity reconsiders the traditional binary logic of “all or nothing” by distributing the weight of causal uncertainty between
the two parties involved: the agent responds only in proportion to the probability that he was the author of the loss caused by the harm; and, correspondingly, the victim obtains reparation adequate to the probability of not having suffered the damage if the event that caused it had not occurred the damage. This provides an equitable solution that refuses to exonerate the agent possibly causing the damage because of the evidentiary problems, but also requires him to make full reparation for damage that he may not have caused.