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About the publication In this book, Pat van den Heever assesses the application of the doctrine of a loss of a chance in medical negligence cases in South Africa. He emphasises the difficulties often encountered by courts when adjudicating on causation in medical negligence cases in the face of multiple causation theories. On the basis of a thorough review of the position regarding the doctrine of a loss of a chance in The United States of America, Australia and Britain, he proposes for South Africa a de lege ferenda loss of chance model for application in medical negligence matters. As the first ever major work dealing with the application of the doctrine of a loss of a chance in medical negligence matters in South Africa, this book is of interest to the courts and the legal profession generally, legal academics working in the field of medical law and the law of delict, health care providers, and members of the medical and allied professions, their councils, associations and protection societies. "This publication is the first authoritative and substantive research on the doctrine of a loss of a chance in the context of medical negligence in South African medical law ... Dr van den Heever's thorough and comprehensive comparative approach and discussion of the doctrine here, is commendable ... [T]his publication is indeed timely!" - Pieter Carstens, Professor of Medical Law, University of Pretoria.
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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.
This book takes an original and comparative approach to issues of causation in tort law across many European legal systems.