Uncertainty is present in virtually every tort litigation. Generally, courts tackle the uncertainty problem by requiring the plaintiff to prove his case by the preponderance of the evidence. However, on numerous occasions tort plaintiffs encounter systematic difficulties in establishing their allegations against defendants. This phenomenon is prevalent in the area of mass torts, which occupies the centre of the tort law agenda in the past three decades. In thisarea, victims of torts systematically fail to establish their lawsuits against wrongdoers even when it is clear that the latter are responsible for enormous damages. The uncertainty problem is not limited to the mass tort context. In many other contexts, tort and evidence law doctrines also fail to offersatisfactory solutions to that problem. Typically, this failure occurs in cases that involve indeterminate causation, an evidentiary barrier that prevents factual attribution of the litigated damage to the defendant''s wrongdoing.
