Why doesn't law take into account probability?

Question

My question is based on my layman understanding, I'm not in law

When I think of "[damages]"^* I think of "what is the expected liability from an interaction," as opposed to "what is the real damage of an interaction."

For example, let's say you get into a car crash (that was not your fault) but do not sustain injuries. Why can't you sue for potential injuries that might have occurred based on probability, despite the fact that you did not sustain injuries?

Another example, let's say you almost get run over by a car, but don't. There was a very real probability that you may have been runover in that scenario, but you didn't. Why isn't there some civil repercussions for that?

Maybe there is, but my understanding is that most law does not incorporate probability.

^* The original question included the word "[s]tanding" here which was not the proper term.

Answer 1

[L]et's say you almost get run over by a car[; t]here was a very real probability that you may have been runover […], but you didn't. Why isn't there some civil repercussions for that?

Construing the first question broadly, and in line with the one reading "[w]hy isn't there some civil repercussions for [a missed although very real probability of a car run-over]?", the question is, admittedly, based on a few incorrect premises. There are "repercussion" some of them being of criminal nature (reckless driving, vehicular assault etc.), and others may become of civil nature as follows:

Common law tort of negligence — Mere threat of harm can be harm for purposes of damages

"“When there is a breach of duty, "a person who is in the path of negligent conduct and reasonably fears for his or her own safety may recover for resulting emotional distress." In re Air Crash Disaster Near Cerritos, Cal., 973 F.2d 1490, 1493 (9th Cir. 1992). ” […] See Potter, 863 P.2d at 833 (George, J., concurring and dissenting) (discussing hypothetical pedestrian narrowly avoiding speeding car and indicating that threat of injury is the relevant issue); Wooden v. Raveling, 71 Cal. Rptr. 2d 891, 897-98 (Cal. Ct. App. 1998) (quoting Potter hypothetical and holding plaintiff was not precluded from relief simply because car did not actually hit her) (Taylor v. Honeywell Int'l, Inc. (9th Cir. 2015) 599 F. App'x 664, 2) (bold type added)

Accordingly, broadly construing the question so as to effect the greatest scope of the spotting of damages, one may sue, although not for injuries per se, but instead damages under an emotional distress legal theory and its particular categories like anxiety, depression, recurring nightmares, sleeplessness, anger, angst etc. depending on the actual facts of the case, and typically supported by expert testimony when possible.

Strictly construing the question, the mere possibility or even probability of injuries do not merit a cause of action for damages in and of themselves, as such damages never occurred.

It may be possible that in certain scenarios the mere possibility is so outrageous that it exceeds all bounds of a civilized society, that nominal damages, say, of $1 are awarded and punitive damages are awarded so as to deter such conduct, but even in that case such a hypothetical case the cause of action will not be the damages under a personal injury tort, but one for nominal damages and for punitive damages even if the factual underpinnings are the same.

Standing

Standing is one's positive relation to at least one event that is the basis of a legal proceeding in a court, that is, one being the presumptive subject of some sort of wrongdoing that merits their recognition as a party to a legal proceeding. The term there would have been "damages" instead of standing.

Why doesn't law take into account probability?

It does. Rarely enumerated probabilities other than in case of the preponderance of the evidence standard of proof where the quality of the evidence must weigh in favor of the one who has the burden of proof, in other words the fact finders job is to decide whether something is greater or smaller than 50 percent probability.

Although it is rather the exception than the rule, probabilities other than the greater-than-50-percent standard also appear here an there in the judicial process, for example, in asylum cases “"[t]o effect a well-founded fear [from persecution so as will constitute protected for purposes of U.S. asylee or refugee status], a threat need not be statistically more than fifty-percent likely [to have been made; however,] the [U.S.] Supreme Court has suggested that even a one-tenth possibility of persecution might effect a well-founded fear." Lim,224 F.3d at 934-935 (citing INS v. Cardoza-Fonseca,480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004) (see also INS v. Cardoza-Fonseca, [“ "Let us ... presume that it is known that in the applicant's country of origin every tenth adult male person is either put to death or sent to some remote labor camp.... In such a case it would be only too apparent that anyone who has managed to escape from the country in question will have 'well-founded fear of being persecuted' upon his eventual return”])

In less enumerated forms many other aspects of the judicial process rely on probabilities.

Answer 2

I think the lay person answer to this is very different from the legal-specific answer.

Civil law, a lawsuit for damages, primarily exists to make a damaged party whole. Thus, the actual damage you received is the only relevant thing (using actual not to mean physical, to be clear, emotional damages are still damage). The civil suit is restoring you to whole as best as possible - you suffered $100,000 in damages of various kinds, so the person gives you $100,000 to make that right.

Criminal law, on the other hand, is the main way that actions are punished at least somewhat disregarding actual damage. Someone acting recklessly (for example, drunk or reckless driving) can be punished based on the possibility of damage occurring even if they don't cause damage. If they do cause damage it might increase the penalty (homicide, for example, if they kill someone through their reckless acts), but just the reckless act itself is punishable.

There are punitive damages in civil law, to be clear, so the line is not strict, but even those must generally be related to the actual damages; the intent is still, for the most part, to make the offended party whole, and punitive damages occur in cases where there is a need to discourage the offending party from repeating the action (often in cases where criminal law isn't practical to apply, and where the actual damages are small enough to be irrelevant to the company).

Answer 3

canada

Probabilities are very much taken into account in law. I'll give just three examples.

Hypothetical future damages (from an otherwise proven wrong)

Athey v. Leonati, [1996] 3 S.C.R. 458 (paragraph 27):

Hypothetical events (such as how the plaintiff’s life would have proceeded without the tortious injury) or future events need not be proven on a balance of probabilities. Instead, they are simply given weight according to their relative likelihood: Mallett v. McMonagle, [1970] A.C. 166 (H.L.); Malec v. J. C. Hutton Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.); Janiak v. Ippolito, [1985] 1 S.C.R. 146. For example, if there is a 30 percent chance that the plaintiff’s injuries will worsen, then the damage award may be increased by 30 percent of the anticipated extra damages to reflect that risk. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke (1990), 74 D.L.R. (4th) 1 (Ont. C.A.).

Risk of death in Section 7 litigation

Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 (paragraph 62):

This Court has most recently invoked the right to life in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, where evidence showed that the lack of timely health care could result in death (paras. 38 and 50, per Deschamps J.; para. 123, per McLachlin C.J. and Major J.; and paras. 191 and 200, per Binnie and LeBel JJ.), and in PHS, where the clients of Insite were deprived of potentially lifesaving medical care (para. 91). In each case, the right was only engaged by the threat of death. In short, the case law suggests that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly.

Informed consent

The law of informed consent requires disclosure of material risks before medical procedures. In assessing whether a risk is material, courts often have to deal directly with probabilities provided by experts. One example is Warlow v. Sadeghi, 2021 BCCA 46.

Why an almost-injury is not compensated?

I've tried to show that the law does indeed care about probabilities in various circumstances. But I also want to answer your question about why people are not compensated for almost being injured.¹

The law of negligence did not develop to compensate people for risk that people experience in their daily activities. It isn't a source of hazard pay. It developed to compensate people for the harm caused by those who owe them a duty to avoid causing that harm. One theory is that the tort of negligence exists to create an incentive for the entity/person/party in the best position to reduce risk to do what is reasonable to reduce that risk. If someone avoids causing harm, then they avoid being found liable in negligence. If instead, we lived in a world where an entity would need to reduce the risk to absolutely zero in order to avoid liability in negligence, this would create the spectre of unlimited liability, paradoxically potentially reducing the incentive to actually take preventive measures.

In Palsgraf v. Long Island Railroad Co., 248 NY 339 (1928), Justice Cardozo quoted:

"Proof of negligence in the air, so to speak, will not do" ... "In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury"

The incentive-based rationale is to have people take actions which would have averted or avoided the injury.

^{1. And to be clear, injury includes psychological injury. Psychological injury is not an almost-injury; it's an injury. See Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paragraphs 8-9: "Generally, a plaintiff who suffers personal injury will be found to have suffered damage. Damage for purposes of this inquiry includes psychological injury. ... This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness. ... The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury."}

Answer 4

united-states

Other Examples Of The Law Considering Probability

In a negligence case, the Learned Hand conduct for what constitutes reasonable care is to compare the cost of taking a precaution to the likelihood of harm times the amount of damages if the precaution is not taken. See also Student Note, "Impact of the Risk Theory on the Law of Negligence" 63(4) Harvard Law Review 671-680 (Feb., 1950).

In the criminal law, "probable cause" is one of the most important legal standards, determining whether a search warrant, arrest, or prosecution for criminal charges is permitted.

In a civil case, the preponderance of the evidence burden of proof is whether it is more likely than not that a fact is true.

The situations the question talks about are sometimes called "risking" and overlap with the tort of negligent infliction of emotional distress (which is recognized to different extents in different U.S. states):

NIED started developing into its more mature and more controversial form in the mid-20th century, as the new machines of the Second Industrial Revolution flooded the legal system with all kinds of previously unimaginable complex factual scenarios. Courts began to allow plaintiffs to recover for emotional distress resulting from negligent physical injuries to not only themselves, but other persons with whom they had a special relationship, like a relative. The first step, then, was to remove the requirement of physical injury to the actual plaintiff while keeping the requirement of physical injury to someone. In the 1968 landmark decision of Dillon v. Legg, the Supreme Court of California was the first court to allow recovery for emotional distress alone – even in the absence of any physical injury to the plaintiff – in the particular situation where the plaintiff simply witnessed the death of a close relative at a distance, and was not within the "zone of danger" where the relative was killed. A 2007 statistical study commissioned by the Court found that Dillon was the most persuasive decision published by the Court between 1940 and 2005; Dillon has been favorably cited and followed by at least twenty reported out-of-state appellate decisions, more than any other California appellate decision.

Generally, however, "near miss" tort cases are not actionable because actually causing physical harm to someone fits with the notion that tort law is to compensate for actual damages suffered and to restore parties to the pre-tort status quo.

For the most part, conduct that poses a high risk of injury without actually causing an injury (which the law of standing prohibits someone from suing over) is dealt with through statutory prohibitions such as traffic law (e.g. careless driving, reckless driving, speeding, running a red light, driving under the influence), and through safety regulations such as the regulations promulgated by OSHA, by the Federal Aviation Administration, by the Consumer Products Safety Commission, and by the Nuclear Regulatory Commission.

This is usually enforced by government agencies, rather than by individuals, since the individuals haven't suffered individualized harm.

For example, the state is in a better position to punish someone for drunk driving than the dozens of people in other cars and pedestrians who might be put at serious risk by someone who drives drunk from one place to another who each bring lawsuits for such conduct if these lawsuits were permitted.

Answer 5

Mathematically, it doesn't really make sense to discuss probabilities of events that have already occurred and have a known outcome. You may estimate that you have a 1% chance of getting hit by a car while walking down a road, but that number is meaningless once you're not on the road anymore - you either got hit or you didn't. Probabilities can only be appropriately applied to events with unknown outcomes, not past events with known outcomes. We can appropriately state that you have 1% chance of getting hit by a car tomorrow, but not that you have a 1% chance of having been hit by a car yesterday, when we know full well whether you did or not.

The probability-based expected value of an event only applies to events with uncertain outcome. There is simply no need to use the expected value for events that do not have an uncertain outcome, which is every past event for which we can observe whatever the outcome was. The expected value of a particular situation describes a kind of "average" that would be expected if the situation occurred many times in an identical fashion. The expected value is basically unrelated to the actual, observed value of a particular instance, however - no matter what your chance of being hit by a car was, that probability is completely superseded by the observation of whether you did or not.

It's possible to receive damages for suffering a probability of injury, as in the emotional distress of nearly facing serious injury/death (since the distress itself is a harm), and it's also possible to receive damages to compensate for future, as yet unknown suffering that may or may not occur (since here expected value of future harm is an appropriate use of probability). But generally, you can't receive damages to compensate for harms that did not and henceforth cannot actually happen to you. Law typically seeks to settle matters as they actually occurred, not to hypothesize what-if cases that are counterfactual to the events that actually happened.

Answer 6

Other answers cite specific cases and legislation. I'd like to focus on the underlying principle to address "why doesn't it (generally)" in the sense of the question.

The law on civil wrongs is largely designed to put right something bad that was done to you that was against the law, or your rights.

There are many ways to do that, but the most common way, is trying to decide on a suitable monetary amount that could be seen as fair to put you back where you would have been, if the wrong thing hadn't been done.

That immediately answers much of your question. The person who nearly got hit by a car, or is assessed as having had a 60% chance of injury but escaped scott free, did not actually get injured so no money is needed to notionally put them back in the same position. In addition lawyers and judges like more certainty, and assessing a probability is a major complication if it had to be done each time, because it could be very subjective. Simply put, not great.

The courts will in some cases view non physical harm as worthy of putting right. So for example, in a near miss case, perhaps trauma was suffered and they lost work. In a contract case perhaps some emotional harm. The court will consider a claim for that as well. Same reason - if the wrong thing hadn't happened you wouldn't have had that issue. But they will often want specialist evidence to confirm you really did have that harm, if its not plainly obvious or likely.

An alternative argument goes like this. Suppose you nearly got run over but didn't, and you aren't shocked or anything else. Who has had harm, that should be addressed? Nobody or perhaps society itself. So in this case why should you claim for a loss you didn't get. The issue is that a driver shouldn't nearly hit people, not that a victim lost anything. That is what criminal law is for - when the wrong is against the rules everyone should live by, according to that jurisdiction. In that case the wrong is seen as done to society not you. If the criminal law says it was wrong, there will be a penalty - owed to society not you. If not, then you aren't wronged and society isn't wronged so no putting right is required by the driver.

An example of where courts will deal with a probability, is when the wrong thing meant you missed a chance (or opportunity) at something. Perhaps if the wrong thing hadn't happened maybe you'd have had a 50% chance of getting something, and because a wrong thing was done you had a 5% chance or no chance at all.

In that case, its certain you missed the chance, so you should have a valid claim. The probability is used to estimate how much the claim is for. Not whether its valid or not.

Answer 7

A more layman's answer, only addressing civil proceedings.

The concept of damages is to compensate for a loss incurred. (Almost always, punitive damages being the exception).

It is not clear to me exactly how damages awarded based on probability would work.

Any situation may have a myriad of outcomes that the court would need to evaluate. On each of those outcomes, mitigating factors would need to be argued. A lot of these outcomes would overlap. Just as an example:

A driver runs a red light. A complainant sues the driver because they could have been killed if they decided to cross the road as a pedestrian.

The driver argues they would have swerved to avoid hitting the complainant.

The complaint then says they may have swerved into other people.

Cue driving expert witnesses from both sides who would try to predict exactly where the driver would swerve.

But one of those probabilities may include hitting other pedestrians and cause mental trauma to the complainant.

Cue mental health expert witnesses that would come in to argue the extent of projected mental impact.

Were any of the pedestrians children? Could they have been children? Could that have had an impact on the extent of mental trauma? Would they have died? How quickly could emergency services arrived?

For each of these questions, there are probabilities attached. You have to look at a very quickly growing tree of outcomes, and then make a judgement based on it.

It becomes quite simply an impossible task to do without severely overburdening the court system.