The Possibility of Compensation for Health Damage in Cases of Uncertain Causes within the Victim’s Sphere

In numerous cases of harm to health, the inability to establish factual causation may be a serious obstacle to the plaintiff’s success, because of causal uncertainty.*1 In most tort cases, the victim must prove by a preponderance of the evidence that the tortfeasor’s behaviour or act was a factual cause of the harm to the plaintiff.*2 Yet, in certain kinds of situations, it is diffi cult or even impossible to prove the aforesaid.*3 In cases of uncertain causation*4, the standard rules of causation are often evaded*5 and the plaintiff can only resort to the probability of the defendant having caused the damage. The defendant’s liability to pay damages for the plaintiff’s illness that was probably caused by the defendant’s breach of duty, as in the infringement of compulsory regulations on occupational safety, is quite a confusing issue, especially when uncertain causes appear within the victim’s sphere. An example of the latter is the scenario wherein the plaintiff’s health had already been weak prior to the defendant’s infringement of regulations. The main aim of this paper is to identify victims’ chances to receive compensation for health damage in cases of uncertain causation pursuant to Estonian law and the case law of the Supreme Court of Estonia. In other words, the question is what the optimal solution should be in the case wherein the victim is only able to establish that the damage was probably caused by the defendant’s unlawful act. To this end, I pose two main questions. Firstly, what are the uncertain causes in the victim’s sphere, and how do the various causes affect