A Critical Analysis of the Current Approach of the Courts and Academics to the Problem of Evidential Uncertainty in Causation in Tort Law
Title | A Critical Analysis of the Current Approach of the Courts and Academics to the Problem of Evidential Uncertainty in Causation in Tort Law PDF eBook |
Author | Gemma Turton |
Publisher | |
Pages | |
Release | 2013 |
Genre | |
ISBN |
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 Negligence
Title | Evidential Uncertainty in Causation in Negligence PDF eBook |
Author | Gemma Turton |
Publisher | Bloomsbury Publishing |
Pages | 259 |
Release | 2016-05-19 |
Genre | Law |
ISBN | 1509900322 |
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 Tort Law
Title | Uncertain Causation in Tort Law PDF eBook |
Author | Miquel Martín-Casals |
Publisher | Cambridge University Press |
Pages | 351 |
Release | 2015-11-19 |
Genre | Law |
ISBN | 1316425487 |
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.
Evidential Uncertainty in Causation in Negligence
Title | Evidential Uncertainty in Causation in Negligence PDF eBook |
Author | Gemma Turton |
Publisher | |
Pages | 246 |
Release | 2016 |
Genre | Proximate cause (Law) |
ISBN | 9781474202695 |
Proof of Causation in Tort Law
Title | Proof of Causation in Tort Law PDF eBook |
Author | Sandy Steel |
Publisher | |
Pages | |
Release | 2015 |
Genre | LAW |
ISBN | 9781316384671 |
Perspectives on Causation
Title | Perspectives on Causation PDF eBook |
Author | Richard Goldberg |
Publisher | |
Pages | 447 |
Release | 2011 |
Genre | Electronic books |
ISBN | 9781472561022 |
"The chapters in this volume arise from a conference held at The University of Aberdeen concerning the law of causation in the UK, Commonwealth countries and the USA. The distinguished group of international experts who have contributed to this book examine the ways in which legal doctrine in causation is developing, and how British law should seek to influence and be influenced by developments in other countries."--
Causation in European Tort Law
Title | Causation in European Tort Law PDF eBook |
Author | Marta Infantino |
Publisher | Cambridge University Press |
Pages | 785 |
Release | 2017-12-28 |
Genre | Law |
ISBN | 1108418368 |
This book takes an original and comparative approach to issues of causation in tort law across many European legal systems.