6 - Proving the Uncertain Causation

Summary

The previous chapter has presented the general proof rules of causation in competition damages actions. These standard rules burden the claimant with the proof of the essential elements of a tort, including causation. However, the claimant may find it very difficult if not impossible to prove causation, especially when information is limited or is not accessible. As observed in Chapter 5, the standard proof rules place the risk for the proof of the claim and the risk of error due to evidential uncertainty on the claimant. The rules allocating this risk are mainly the result of policy-based decisions aiming at distributing the risk fairly between the parties based on a moral statement. However, on the basis of equally justifiable policy and moral choices, it is possible to create exceptions to this rule in two cases: (1) when the information is readily available to the other party and (2) when it is fair, according to the type of responsibility, to allocate the risk differently.