Proportional Liability as an Application of the Precautionary Principle. Comparative Analysis of the Italian Experience

Authors: Giovanni Comandé, Luca Nocco

ABSTRACT

“All-or-nothing” rule is still the most used system to allocate damages in tort law. According to this principle, a judge must establish the minimum threshold beyond which causation is established and below which, on the contrary, a right to compensation may not exist. The article argues that proportional liability is a suitable option to substitute the “all-or-nothing” approach, especially in cases of (causal/scientific) uncertainty. The aim is to have a more flexible instrument in pursuing the traditional goals of tort law, i.e. compensation an deterrence, by means of a progressive precautionary approach according to which liability should be proportionally attributed in compliance with developments in scientific knowledge and evidence concerning general causation

Keywords: proportional liability - tort law - scientific uncertainty - causation - precautionary principle - “all-or-nothing”

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