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Evidential Uncertainty in Causation in Negligence

By: Gemma Turton
Media of Evidential Uncertainty in Causation in Negligence
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Published: 19-05-2016
Format: Hardback
Edition: 1st
Extent: 264
ISBN: 9781849467049
Imprint: Hart Publishing
Series: Hart Studies in Private Law
Dimensions: 234 x 156 mm
RRP : £60.00

: 14 -21 days

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Loren Epson

About Evidential Uncertainty in Causation in Negligence

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.

Table Of Contents

1. Theoretical and Doctrinal Framework
2. Identifying the Proper Function of Causation
Part I: Identifying the Function of Causation in Negligence
Part II: Tests for Causation
Part III: Using NESS to Overcome Common Problems with Exceptional Legal Tests
3. Proof of Causation
4. Loss of a Chance
Part I: Loss of a Chance: Proportionate Recovery for Physical Harm
Part II: The 'Lost Opportunity' as Damage
5. The Evidentiary Gap


“The benefits of Green's NBA lie in its simplicity and certainty. This alone makes Causation in Negligence a valuable contribution to the literature, particularly for those of us who prefer not to wade through complex algebraic formulations of causation. Green's book is also valuable for its frank acceptance of causal uncertainty,
and for acknowledging that this creates winners and losers in tort litigation.
” –  Erika Chamberlain, Professor and Dean, Faculty of Law, Western University, CanadianBusiness LawJournal

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