Prix 2007 du Concours juridique de la Fondation du Barreau du Québec, catégorie Monographie.
Causation is probably one the most problematic elements of modern tort law and responsabilité civile. This book seeks to defend the position that existing legal rules provide tools for the courts of the four main jurisdictions under study (English and Canadian common law, French civil law and civil law prevailing in the Canadian Province of Québec) to address the uncertainty problem encountered in medical liability in a way that will ensure proper compensation for the plaintiff on the one hand, while preserving respect for the fundamental principles of the law, promoting their effectiveness, and ensuring fairness to the defendant on the other.
Praise for Uncertain Causation in Medical Liability:
- Jens M. Scherpe in The Law Quarterly Review, October 2007 – volume 12: "The book not only makes for an interesting read but will also prove very helpful for those whose search for such a solution can now start from a firm basis".
- Jonathan Herring, Legal Studies, Vol. 27, No. 4, December 2007: "This is a magisterial discussion of the complexities surrounding causal issues in medical negligence cases. ... The scholarship is thorough and detailed. I could not find a single case or relevant article that was not referred to. The writing is clear and engaging. The reasoning is careful and deep. It is easy to see how the book won the Prix Minerve 2004".
- Jenny Steele, King's Law Journal, Vol 19, Issue 1, 2008: "This book undertakes a very valuable project in a detailed and thoughtful way... The comparative focus is undoubtedly a strength of the book... it is hard to imagine that anyone would fail to learn something useful from the analysis. ... Khoury has provided a thoughtful, detailed and stimulating contribution to the debate about medical causation, even if she has (unsurprisingly) not resolved it"
- Paula Giliker, Common Law World Review: "Khoury's book is stimulating, well argued and thoughtful and serves once again to demonstrate the ongoing tension between legal rules and concerns of distributive and corrective justice" .
- Harold Luntz, Torts Law Journal, vol. 17, 2008 : "While philosophers will no doubt continue to be confused by the way courts deal with evidentiary gaps in the face of scientific uncertainty, Lara Khoury's book will provide lawyers with valuable guidance on proof of causation in such cases".
TABLE OF CONTENTS
Problems in the Proofs of Causation
- Proof of Causation
- Evidence in the Four Jurisdictions
- Importance and Mutability of the Traditional Standards
- Flexibility and Independence of the Judiciary
- Flexibility in Light of Expert Controversies
Reversal of the Burden of Proving Causation
- Common Law
- Civil Law
- Critical Analysis
Probabilistic Assessment of Damages
- Loss of Chance
- Market-share Liability
- Critical Analysis (Loss of Chance)
Inferences of Causation
- Inferences and Factual Presumptions
- The Development of Justifications
- Critical Analysis
Final Analysis and Conclusion