Evidential Uncertainty in Causation in NegligenceEvidential Uncertainty in Causation in Negligence



This book undertakes an analysis of academic and judicial responses to the problem of evidential uncertainty in causation in negligence.

Author: Gemma Turton

Publisher: Bloomsbury Publishing

ISBN: 9781509900336

Category:

Page: 264

View: 780

This book undertakes an analysis of academic and judicial responses to the problem of evidential uncertainty in causation in negligence. It seeks to bring clarity to what has become a notoriously complex area by adopting a clear approach to the function of the doctrine of causation within a corrective justice-based account of negligence liability. It first explores basic causal models and issues of proof, including the role of statistical and epidemiological evidence, in order to isolate the problem of evidential uncertainty more precisely. Application of Richard Wright's NESS test to a range of English case law shows it to be more comprehensive than the 'but for' test that currently dominates, thereby reducing the need to resort to additional tests, such as the Wardlaw test of material contribution to harm, the scope and meaning of which are uncertain. The book builds on this foundation to explore the solution to a range of problems of evidential uncertainty, focusing on the Fairchild principle and the idea of risk as damage, as well as the notion of loss of a chance in medical negligence which is often seen as analogous with 'increase in risk', in an attempt to bring coherence to this area of the law.
The primary aim of this thesis is to identify a coherent legal response to the particular causal problem of the 'evidentiary gap'. In order to do this, it is necessary to understand how the 'evidentiary gap' relates to causation in negligence more generally, so the thesis addresses both the nature and function of the tort of negligence as well as the role played by causation within that tort. It argues that negligence is best understood as a system of corrective justice-based interpersonal responsibility. In this account, causation has a vital role so the test of causation must be philosophically sound. Causation, however, also occupies only a limited role so analysis must draw fully on the doctrines of damage and breach which bracket the causation inquiry, as well as notions of quantification of loss. The NESS test for causation is shown to be preferable to the but-for test because it is conceptually more adequate and therefore able to address causal problems that the but-for test cannot. This thesis rejects claims for proportionate recovery based on the notion of loss of a chance of avoiding physical harm in medical negligence, but proposes limited recovery for loss of a chance as an independent form of damage arising because of unique considerations of interpersonal responsibility in the doctor-patient relationship in cases of misdiagnosis/ mistreatment of existing illness. It is argued that the Fairchild test of material contribution to risk of harm in cases of evidentiary gap is not consistent with corrective justice, and that this cannot be resolved by reconceptualising the gist of the action as the risk of harm. The Fairchild exception lacks coherence because of its instrumentalist basis, so should not be applied outside of the mesothelioma context.

Evidential Uncertainty in Causation in NegligenceEvidential Uncertainty in Causation in Negligence



Steel and Ibbetson have explained that, [t]he normal rule of causation ... has two aspects: the evidential and the conceptual.

Author: Gemma Turton

Publisher: Bloomsbury Publishing

ISBN: 9781509900329

Category:

Page: 264

View: 865

This book undertakes an analysis of academic and judicial responses to the problem of evidential uncertainty in causation in negligence. It seeks to bring clarity to what has become a notoriously complex area by adopting a clear approach to the function of the doctrine of causation within a corrective justice-based account of negligence liability. It first explores basic causal models and issues of proof, including the role of statistical and epidemiological evidence, in order to isolate the problem of evidential uncertainty more precisely. Application of Richard Wright's NESS test to a range of English case law shows it to be more comprehensive than the 'but for' test that currently dominates, thereby reducing the need to resort to additional tests, such as the Wardlaw test of material contribution to harm, the scope and meaning of which are uncertain. The book builds on this foundation to explore the solution to a range of problems of evidential uncertainty, focusing on the Fairchild principle and the idea of risk as damage, as well as the notion of loss of a chance in medical negligence which is often seen as analogous with 'increase in risk', in an attempt to bring coherence to this area of the law.

Uncertain Causation in Medical LiabilityUncertain Causation in Medical Liability



Human health causation, and, 1, 2 and see Causation damage, to, 1, 2 risks, to, 1, ... 200, 201–205 evidential uncertainty, 199 factual presumptions, 199, ...

Author: Lara Khoury

Publisher: Bloomsbury Publishing

ISBN: 9781847312730

Category:

Page: 256

View: 319

'Proving' the cause of the plaintiff's injury in personal injury litigation often entails significant challenges, particularly when science cannot identify the cause of a biological phenomenon or when the nature of this cause is debatable. This problem is frequently encountered in medical malpractice cases, where the limitations of scientific knowledge are still extensive. Yet judges must decide cases, however uncertain the evidence with regard to proof of causation. Reluctant to leave patients without compensation, courts have in some cases challenged their traditional approach to causation through recourse to such techniques as reliance on factual presumptions and inferences, the concept of loss of chance, and reversal of the burden of proof. This book analyses and criticises the use of these various techniques by the courts of England, Australia, Canada, France, and the civilian Canadian province of Quebec in confronting evidentiary causal difficulties caused by the uncertainties of medical science.

Tort Liability Under UncertaintyTort Liability Under Uncertainty



Providing a comprehensive and principled account of the uncertainty problem that arises in tort litigation, this text critically examines the existing doctrinal solutions of the problem, as evolved in England, United States, Canada & Israel ...

Author: Ariel Porat

Publisher: Oxford University Press on Demand

ISBN: 0198267975

Category:

Page: 214

View: 815

Providing a comprehensive and principled account of the uncertainty problem that arises in tort litigation, this text critically examines the existing doctrinal solutions of the problem, as evolved in England, United States, Canada & Israel.

Tort LawTort Law



Unless this hurdle was cleared, the ordinary causation rule—proof on the ... Should evidential uncertainty arising out of the limitations of science be ...

Author: Ken Oliphant

Publisher: Oxford University Press

ISBN: 9780198745525

Category:

Page: 1048

View: 753

The sixth edition of this market-leading tort law text provides a complete, authoritative guide to the subject. It combines clear overviews of the law with extracts from cases and materials supported by insightful commentary.

Proof of Causation in Tort LawProof of Causation in Tort Law



Cf. S. Green, Causation in Negligence, 67, who non-standardly claims that the 'very ... in treating conceptual and evidential uncertainty in analogous ways.

Author: Sandy Steel

Publisher: Cambridge University Press

ISBN: 9781316381076

Category:

Page:

View: 244

Causation is a foundational concept in tort law: in claims for compensation, a claimant must demonstrate that the defendant was a cause of the injury suffered in order for compensation to be awarded. Proof of Causation in Tort Law provides a critical, comparative and theoretical analysis of the general proof rules of causation underlying the tort laws of England, Germany and France, as well as the exceptional departures from these rules which each system has made. Exploring the different approaches to uncertainty over causation in tort law, Sandy Steel defends the justifiability of some of these exceptions, and categorises and examines the kinds of exceptional rules suggested by the case law and literature. Critically engaged with both the theoretical literature and current legal doctrine, this book will be of interest to private law scholars, judges and legal practitioners.

Causation in NegligenceCausation in Negligence



In A Porat and A Stein, 'Liability for Uncertainty: Making Evidential Damage Actionable' (1997) 18 Cardozo Law Review 1891 and A Porat and A Stein, Tort ...

Author: Sarah Green

Publisher: Bloomsbury Publishing

ISBN: 9781782255208

Category:

Page: 224

View: 959

The principal objective of this book is simple: to provide a timely and effective means of navigating the current maze of case law on causation, in order that the solutions to causal problems might more easily be reached and the law relating to them more easily understood. The need for this has been increasingly evident in recent judgments dealing with causal issues: in particular, it seems to be ever harder to distinguish between the different 'categories' of causation and, consequently, to identify the legal test to be applied on any given set of facts. Causation in Negligence will make such identification easier, both by clarifying the parameters of each category and mapping the current key cases accordingly, and by providing one basic means of analysis which will make the resolution of even the thorniest of causal issues a straightforward process. The causal inquiry in negligence seems to have become a highly complicated and confused area of the law. As this book demonstrates, this is unnecessary and easily remedied.

Causation in European Tort LawCausation in European Tort Law



Prawo zobowiązań–częśc ́ ogólna(Warsaw: C.H. Beck, 2009) Oliphant, K., 'Causation in Cases of Evidential Uncertainty: Juridical Techniques and Fundamental ...

Author: Marta Infantino

Publisher: Cambridge University Press

ISBN: 9781108418362

Category:

Page:

View: 946

This book takes an original and comparative approach to issues of causation in tort law across many European legal systems.

Tort LawTort Law



... expect little flexibility from the courts in their approach to causation. ... approach to resolving evidential uncertainties about causation also seems ...

Author: Nicholas J McBride

Publisher: Pearson UK

ISBN: 9781292207858

Category:

Page: 944

View: 646

Written by two leading scholars, Tort Law combines detailed coverage of the legal principles, supported by hypothetical case scenarios and guided further reading, with critical discussion of the key academic debates and literature in the subject making it ideal for use by anyone studying tort law at undergraduate or postgraduate level. Extensively updated, this new edition covers all important case-law and legislative developments, including the expansion of vicarious liability in Mohamud v Wm Morrison Supermarkets, the treatment of the notion of ‘defect’ under the Consumer Protection Act 1987 in Wilkes v Depuy International Ltd, the reinvigoration of the tort in Wilkinson v Downton by O (a child) v Rhodes, the recognition of a tort of the malicious institution of civil proceedings in Willers v Joyce, and the attempts to reform the law on the defence of illegality in Patel v Mirza.

Street on TortsStreet on Torts



The negligent employer will be fully liable for the loss,60 unless able to ... Evidential Uncertainty in Causation in Negligence (2016), 169; S Green, ...

Author: Christian Witting

Publisher: Oxford University Press

ISBN: 9780198811169

Category:

Page: 687

View: 107

Street on Torts provides an insightful and thorough treatment of tort law with a focus on key concepts and clear explanations. This book builds upon the excellent legacy of its previous, celebrated authors with a renewed focus on the needs of today's students. Alongside perceptive coverage of the key principles of tort law, succinct case extracts and accompanying analyses allow students to consider the law in context and understand how it is applied in practice. Key Issues boxes help to guide students through each chapter, whilst clear conclusions offer the opportunity for consolidation. The 15th edition of the book also sees the introduction of problem questions at the end of each chapter, which allow students to actively apply their knowledge of the law whilst practising essential analytical and essay writing skills. Online Resources This book is accompanied by online resources, including answer guidance for each of the problem questions in the book, an additional chapter on animal torts and updates with details of key developments in the law since publication.

Uncertain Causation in Tort LawUncertain Causation in Tort Law



uncertainty is epistemological or evidential, that is, it lies in the fact that causation cannot be proven, but not in the fact that the situation under ...

Author: Miquel Martín-Casals

Publisher: Cambridge University Press

ISBN: 9781107128361

Category:

Page: 400

View: 587

This discussion of causal uncertainty in tort liability shows the important normative, epistemological and procedural implications of the various proposed solutions, and will be of interest to legal scholars, legal philosophers and advanced tort law students.

Liability of Corporate Groups and NetworksLiability of Corporate Groups and Networks



The negligent employer will be liable fully for the loss,140 unless able to obtain ... in analogous cases of evidential uncertainty and indivisible disease.

Author: Christian A. Witting

Publisher: Cambridge University Press

ISBN: 9781107039926

Category:

Page: 510

View: 902

Discusses the nature of corporate groups and networks and provides arguments for rules extending liability beyond insolvent entities.

Causation in Competition Law Damages ActionsCausation in Competition Law Damages Actions



This evidential uncertainty affects the application of substantive laws defining causation and procedural laws on the proof of causation.

Author: Claudio Lombardi

Publisher: Cambridge University Press

ISBN: 9781108428620

Category:

Page: 250

View: 349

Elucidates the concept of causation in competition law damages and outlines its practical implications through relevant case law.

Remedies in Australian Private LawRemedies in Australian Private Law



... 81–2 duplicative causation, 81–4 evidential uncertainty see evidential ... lack of see lack of clean hands common law contributory negligence, ...

Author: Katy Barnett

Publisher: Cambridge University Press

ISBN: 9781108265850

Category:

Page:

View: 635

The second edition of Remedies in Australian Private Law offers readers a clear and detailed introduction to remedies and their functions under Australian law. Clearly structured, with a strong black-letter law focus, the text provides a complete treatment of remedies in common law, equity and statute and develops a framework for understanding the principles of private law remedies and their practical application. This edition has been significantly revised and offers up-to-date coverage of case law and legislation, including the Australian Consumer Law. Building on the detailed treatment of remedies and their broad functions across a range of private law categories, the new edition also offers expanded coverage of vindicatory damages, debt, specific restitution and coercive remedies. With its systematic and accessible approach, this text enables students and practitioners to develop a coherent understanding of remedial law, and to analyse legal problems and identify appropriate remedial solutions.

The Goals of Private LawThe Goals of Private Law



Causation. and. the. Goals. of. Tort. Law. DONAL NOLAN* ... about the 'goals' of tort law than do cases of evidential uncertainty.1 The scope of my chapter ...

Author: Andrew Robertson

Publisher: Bloomsbury Publishing

ISBN: 9781847317186

Category:

Page: 526

View: 334

This collection contributes to a fundamentally important set of debates about the nature of private law. The essays consider whether private law should be seen as having goals and, if so, whether those goals are particular to private as opposed to public law. They consider the legitimacy of the pursuit of community welfare goals in private law and the place of instrumentalist thinking in private law scholarship. They explore the relationship between the pursuit of policy goals and the other influences that shape private law, such as the formal values of certainty, consistency and coherence and the need to do justice to the parties to particular disputes. The collection analyses the role that particular policy goals do and should play in particular private law doctrines, and contributes to debate about the relationship between community welfare goals and considerations of interpersonal morality arising from the interactions between individuals. The contributors are drawn from across the common law world and offer a diverse range of perspectives on the controversies under consideration.

Medical Law ConcentrateMedical Law Concentrate



A typical example is where the alleged negligence has materially contributed ... This will benefit claimants when there is evidential uncertainty and there ...

Author: Josephine Samanta

Publisher: Oxford University Press, USA

ISBN: 9780199689552

Category:

Page: 216

View: 237

If you're serious about exam success, it's time to Concentrate! Medical Law Concentrate is the essential study and revision guide for law students looking to consolidate knowledge and achieve the best possible marks in their exams. Providing clear, succinct coverage of the essential topics, it enables you to quickly grasp the fundamental principles of this area of law and excel in exams. This guide has been rigorously reviewed and is endorsed by students and lecturers for level of coverage, accuracy, and exam advice. Packed with essential information, key cases, revision tips, exam q & as, and more, Medical Law Concentrate is also supported by extensive online resources to take your learning further. Online Resource Centre (http://www.oxfordtextbooks.co.uk/orc/concentrate) DT Plan your revision using the printable topic overviews DT Pinpoint which areas you need to concentrate on with the diagnostic test DT Test your knowledge of medical law with multiple choice questions and receive feedback on your answers DT Improve your essay skills using the outline answers for guidance on what to include and how to structure your answer DT Revise the facts and discussions of key cases using the interactive flashcards DT Learn the important terms and definitions using the interactive glossary DT Check that you have covered the main points of a topic using the key facts lists DT Achieve better marks with the aid of experienced advice on revision and exam technique

Markesinis and Deakin s Tort LawMarkesinis and Deakin s Tort Law



... PROOF IN CASES OF EVIDENTIAL UNCERTAINTY A further difficulty in applying the ... 46 J.G. Fleming, 'Probabilistic Causation in Tort Law' (1989) 68 208 ...

Author: Simon Deakin

Publisher: Oxford University Press, USA

ISBN: 9780198747963

Category:

Page: 1016

View: 896

Now in its eighth edition Markesinis and Deakin's Tort Law provides a general overview of the law and full discussion of the academic debates on all major topics, highlighting the relationship between the common law, legislation, and judicial policy. In addition, the authors provide a variety of comparative and economic perspectives on the law of tort and its likely development, always placing the subject in its socio-economic context thereby giving students a deeper and richer understanding of tort law. This detailed and authoritative book offers teachers a wide range of topics to cover, while providing students with a text which is both descriptive and reflective of this branch of law.

Street on TortsStreet on Torts



... then, even greater evidential uncertainty in McGhee than in Bonnington. ... As is made clear in S Steel, Proof of Causation in Tort Law (2015), ...

Author: Christian Witting

Publisher: Oxford University Press

ISBN: 9780198865506

Category:

Page: 768

View: 524

Street on Torts provides an insightful and thorough treatment of tort law with a focus on key concepts and clear explanations.