'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.

Auteur

Lara Khoury, LL.B (Sherb.) B.C.L. (Oxon.), D.Phil (Oxon.), Barrister and Solicitor, is an Associate Professor and Assistant Dean (Research) at McGill University, Canada.

Contenu

Introduction
Section 1-A Society of Risks and Uncertainty
Section 2-Uncertainty in Medical Malpractice
Section 3-Jurisdictions, Fields of Law, and Methodology
Section 4-Structure
Chapter 1: Problems in the Proof of Causation
Section 1-Proof of Causation
Section 2-Evidence in the Four Jurisdictions
Section 3-The Impact of Scientific Uncertainties on the Proof of Causation
Chapter 2: Flexibility .
Section 1-Importance and Mutability of the Traditional Standards .
Section 2-Flexibility and Independence of the Judiciary .
Section 3-Flexibility in Light of Expert Controversies
Chapter 3: Reversal of the Burden of Proving Causation .
Section 1-Common Law . . .
Section 2-Civil Law . .
Section 3-Critical Analysis .
Chapter 4: Probabilistic Assessment of Damages .
Section 1-Loss of Chance
Section 2-Market-share Liability .
Section 3-Critical Analysis (Loss of Chance)
Chapter 5: Inferences of Causation
Section 1-Inferences and Factual Presumptions . .
Section 2-The Development of Justifications
Section 3-Critical Analysis
Final Analysis and Conclusion
Section 1-General Review .
Section 2-Review of the Critique of the Solutions
Section 3-The Alternative-Cumulative Causes Distinction . .
Section 4-Flexibility and the Evidential Solution
Section 5-Alternative Solutions?