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Author: Gemma Turton Publisher: Bloomsbury Publishing ISBN: 1509900330 Category : Law Languages : en Pages : 419
Book Description
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.
Author: Gemma Turton Publisher: Bloomsbury Publishing ISBN: 1509900330 Category : Law Languages : en Pages : 419
Book Description
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.
Author: Gemma Turton Publisher: ISBN: Category : Languages : en Pages :
Book Description
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.
Author: Gemma Turton Publisher: Bloomsbury Publishing ISBN: 1509900322 Category : Law Languages : en Pages : 264
Book Description
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.
Author: Ariel Porat Publisher: Oxford University Press, USA ISBN: 9780198267973 Category : Law Languages : en Pages : 236
Book Description
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: Sarah Green Publisher: Bloomsbury Publishing ISBN: 1782255214 Category : Law Languages : en Pages : 295
Book Description
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.
Author: Lara Khoury Publisher: Bloomsbury Publishing ISBN: 184731273X Category : Law Languages : en Pages : 304
Book Description
'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.
Author: Ken Oliphant Publisher: Oxford University Press ISBN: 0198865112 Category : Languages : en Pages : 1086
Book Description
This book takes a socio-legal approach and provides a rich and thorough understanding of tort law. Each section begins with a clear overview of the law, followed by illustrative extracts from case law and from government reports and scholarly literature, which are supported by explanation and analysis. This seventh edition has been brought completely up to date by Ken Oliphant and Donal Nolan.Digital formatsThe seventh edition is available for students and institutions to purchase in a variety of formats, and is supported by online resources.· The e-book offers a mobile experience and convenient access along with functionality tools and navigation features: www.oxfordtextbooks.co.uk/ebooks · All of OUP's tort law textbooks are supported by online resources including bi-annual updates on the latest key developments in tort law, and self-test questions on key topics, with feedback, providing an opportunity for students to test and consolidate their learning.
Author: Miquel Martín-Casals Publisher: Cambridge University Press ISBN: 1316425487 Category : Law Languages : en Pages : 351
Book Description
This discussion of causal uncertainty in tort liability adopts a comparative approach in order to highlight the important normative, epistemological and procedural implications of the various proposed solutions. Occupying a middle ground between the legal perspective and the philosophical views that are at stake when it comes to the resolution of tort law cases in a context of causal uncertainty, the arguments will be of great interest to legal scholars, legal philosophers and advanced tort law students.
Author: Gemma Turton
Author: Gemma Turton
Author: Gemma Turton
Author: Gemma Turton
Author: Ariel Porat
Author: Sandy Steel
Author: Sarah Green
Author: Marta Infantino
Author: Lara Khoury
Author: Ken Oliphant
Author: Miquel Martín-Casals