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Author : Miquel Martín-Casals,Diego M. Papayannis
Publisher : Unknown
Page : 352 pages
File Size : 51,7 Mb
Release : 2016
Category : Causation
ISBN : 131642782X
Discusses causal uncertainty in tort liability and shows the important normative, epistemological and procedural implications of the various proposed solutions.
Author : Lara Khoury
Publisher : Bloomsbury Publishing
Page : 256 pages
File Size : 40,8 Mb
Release : 2006-07-18
Category : Law
ISBN : 9781847312730
'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 : Miquel Martín-Casals,Diego M. Papayannis
Publisher : Cambridge University Press
Page : 343 pages
File Size : 46,9 Mb
Release : 2015-11-19
Category : Law
ISBN : 9781316425480
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
Publisher : Bloomsbury Publishing
Page : 419 pages
File Size : 51,5 Mb
Release : 2016-05-19
Category : Law
ISBN : 9781509900336
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,Alex Stein
Publisher : Oxford University Press, USA
Page : 236 pages
File Size : 50,8 Mb
Release : 2001
Category : Law
ISBN : 0198267975
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 : Sandy Steel
Publisher : Cambridge University Press
Page : 461 pages
File Size : 41,8 Mb
Release : 2015-09-11
Category : Law
ISBN : 9781107049109
A clear, critical analysis of proof of causation in the law of tort in England, France and Germany.
Author : Sandy Steel
Publisher : Unknown
Page : 128 pages
File Size : 40,7 Mb
Release : 2015
Category : LAW
ISBN : 1316384675
Author : Marta Infantino,Eleni Zervogianni
Publisher : Cambridge University Press
Page : 786 pages
File Size : 54,9 Mb
Release : 2017-12-28
Category : Law
ISBN : 9781108307871
Through a comprehensive analysis of sixteen European legal systems, based on an assessment of national answers to a factual questionnaire, Causation in European Tort Law sheds light on the operative rules applied in each jurisdiction to factual and legal causation problems. It highlights how legal systems' features impact on the practical role that causation is called upon to play, as well as the arguments of professional lawyers. Issues covered include the conditions under which a causal link can be established, rules on contribution and apportionment, the treatment of supervening, alternative and uncertain causes, the understanding of loss-of-a-chance cases, and the standard and the burden of proving causation. This is a book for scholars, students and legal professionals alike.
Author : Miquel Martín-Casals,Diego M. Papayannis
Publisher : Cambridge University Press
Page : 351 pages
File Size : 53,5 Mb
Release : 2015-11-19
Category : Law
ISBN : 9781107128361
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.
Author : Matthew Dyson
Publisher : Cambridge University Press
Page : 465 pages
File Size : 45,7 Mb
Release : 2014-07-17
Category : Law
ISBN : 9781107066113
Innovative and groundbreaking research on how tort and crime interrelate in English law.
Author : Gemma Turton
Publisher : Unknown
Page : 128 pages
File Size : 53,6 Mb
Release : 2013
Category : Electronic
ISBN : OCLC:835975318
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 : Kenneth D. Cooper-Stephenson
Publisher : Captus Press
Page : 448 pages
File Size : 46,5 Mb
Release : 1993
Category : Damages
ISBN : 0921801874
Author : Sarah Green
Publisher : Bloomsbury Publishing
Page : 295 pages
File Size : 43,9 Mb
Release : 2015-01-15
Category : Law
ISBN : 9781782255215
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 : Israel Gilead,Michael D. Green,Bernhard A. Koch
Publisher : Walter de Gruyter
Page : 396 pages
File Size : 52,9 Mb
Release : 2013-10-14
Category : Law
ISBN : 9783110282580
Causal uncertainty is a wide-spread phenomenon. Courts are often unable to determine whether a defendant’s tortious conduct was a factual cause of a plaintiff’s harm. Yet, sometimes courts can determine the probability that the defendant caused the plaintiff’s harm, although often there is considerable variance in the probability estimate based on the available evidence. The conventional way to cope with this uncertainty has been to apply the evidentiary rule of ‘standard of proof’. The application of this ‘all or nothing’ rule can lead to unfairness by absolving defendants who acted tortiously and may also create undesirable incentives that result in greater wrongful conduct and injustice to victims. Some courts have decided that this ‘no-liability’ outcome is undesirable. They have adopted rules of proportional liability that compensate plaintiffs according to the probability that their harm was caused by the defendant’s tortious conduct. In 2005 the Principles of European Tort Law (PETL) made a breakthrough in this regard by embracing rules of proportional liability. This project, building on PETL, endeavours to make further inquiries into the desirable scope of proportional liability and to offer a more detailed view of its meaning, implications, and ramifications.
Author : Walter J. Blum,Harry Kalven
Publisher : Unknown
Page : 100 pages
File Size : 42,7 Mb
Release : 1965
Category : Law
ISBN : STANFORD:36105044387202