Uncertain Causation in Medical Liability by Lara Khoury

By Lara Khoury

Proving the reason for the plaintiff's harm in own harm litigation frequently includes major demanding situations, really while technological know-how can't determine the reason for a organic phenomenon or while the character of this reason is controversial. This challenge is usually encountered in scientific malpractice situations, the place the constraints of medical wisdom are nonetheless vast. but judges needs to make a decision circumstances, besides the fact that doubtful the proof in regards to facts of causation. Reluctant to depart sufferers with out reimbursement, courts have occasionally challenged their conventional method of causation via recourse to such recommendations as reliance on real presumptions and inferences, the idea that of lack of likelihood, and reversal of the weight of evidence. This ebook analyzes and criticizes using those a number of concepts by means of the courts of britain, Australia, Canada, France, and the civilian Canadian province of Quebec in confronting evidentiary causal problems because of the uncertainties of clinical technological know-how. This comparative research, interpreting essentially the most hotly debated concerns in scientific legal responsibility legislation, has been presented a prestigious prize—the Prix Minerve 2004—from the Les ?ditions Yvon Blais.

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2002] 3 All ER 305 (HL). [1973] 1 WLR 1 (HL). Introduction Section 1 A Society of Risks and Uncertainty Recent decades have seen tremendous improvements to our way of life and our prosperity, as well as our power to heal. Progress has come at a cost, however, that of incurring new and sometimes unknown risks which may exact a toll years and even decades after their incorporation into everyday life. We are currently discovering more and more adverse impacts of developments we initially thought harmless.

33 If the answer to this question is 27 Fleming (n 21 above) p 194. See also, England: Honoré (n 4 above) p 67; G Williams, ‘Causation in the Law’ (1961) CLJ 62, 63; Rogers (n 4 above) pp 213–14; Canada: Athey v Leonati (n 8 above) p 466; Walker Estate v York Finch General Hospital [2001] 198 DLR (4th) 193; [2001] 1 SCR 647, para 87; and Giesen (n 3 above) p 177. 28 Commonly referred to as the equivalence theory or the condition theory: Honoré (n 4 above) p 33. This theory has fallen out of favour in civil law and common law except as a test of cause in fact: pp 31 and 36.

On these historical developments: FP Walton & M Tancelin, (trs), Le domaine et l’interprétation du Code civil du Bas-Canada (Toronto, Butterworths, 1980) 35. While predominantly of French origin, Québec private law is also composed of federal statutes and some rules of common law origin. 15 In 1866, the distinctiveness of Québec private law was confirmed by the drafting of the Civil Code of Lower-Canada (‘CcL-C’) which aimed to protect the French legal tradition from foreign influence: Office de révision du Code civil, PA Crépeau (Chair), Rapport sur le Code civil du Québec, vol I (Québec, Éditeur officiel, 1978) XXVI–XXVII cited in M Guy, ‘Le Code civil du Québec: Un peu d’histoire, beaucoup d’espoir’ (1993) 23 Revue de droit de l’Université de Sherbrooke 453, 461.

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