Full Text Available
Note: Clicking the button above will open the full text document at the original institutional repository in a new window.
An analysis of causation in medical law
Thesis (LLD)--University of Pretoria, 2018.
Saved in:
| Other Authors: | |
|---|---|
| Format: | Thesis |
| Language: | English |
| Published: |
University of Pretoria
2019
|
| Subjects: | |
| Tags: |
No Tags, Be the first to tag this record!
|
| _version_ | 1867613515847565312 |
|---|---|
| access_status_str | Open Access |
| author2 | Carstens, Pieter Albert, 1960- |
| author_browse | Carstens, Pieter Albert, 1960- |
| author_facet | Carstens, Pieter Albert, 1960- |
| collection | Thesis |
| dc_rights_str_mv | © 2019 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
| description | Thesis (LLD)--University of Pretoria, 2018. |
| format | Thesis |
| id | oai:repository.up.ac.za:2263/69974 |
| institution | University of Pretoria (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:37:22.997Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UPSpace — University of Pretoria Institutional Repository |
| publishDate | 2019 |
| publishDateRange | 2019 |
| publishDateSort | 2019 |
| publisher | University of Pretoria |
| publisherStr | University of Pretoria |
| record_format | dspace |
| source_str | UPSpace — University of Pretoria Institutional Repository |
| spelling | oai:repository.up.ac.za:2263/69974 An analysis of causation in medical law Carstens, Pieter Albert, 1960- u96003694@tuks.co.za Politis, Alexander UCTD Thesis (LLD)--University of Pretoria, 2018. This dissertation addresses the most prominent difficulties involved in the determination of causation in the context of medical law in South Africa. The principal philosophical and conceptual basis of causation is based on pure logic, whereas legal principles governing causation are based on, and influenced by concepts such as "common sense" and "language". "Common sense", although forming an important part of any examination into causation, cannot adequately deal with complex issues of causation. The main South African principles governing causation, evidence a reliance on the traditional two-step test for causation, commencing with the conditio sine qua non theory and the limitation of liability through the application of the principles which govern legal causation. The tension between a purist approach to factual causation, based on the conditio sine qua non theory, and the wider "flexible" approach to factual causation enumerated by the Constitutional Court in Lee v Minister of Correctional Services 2013 2 SA 144 (CC) remains entirely unresolved. The inability of the conditio sine qua non theory to provide fair and just results in South African medical law requires the consideration of a risk-based, negligentincrease- in-risk approach to factual causation. Problems relating to evidentiary gaps, disease, drug interactions and multiple uncertain causes in medical law are universally encountered and the legal systems of Germany, England & Wales, Canada and Australia. The aforementioned jurisdictions provide useful comparative solutions and alternative approaches to problems in establishing causation in medical law. The alternative suggested approaches to the established principles of causation are premised on contribution to risk or damage, with a departure from purist approaches to factual and legal causation in English, Canadian and Australian law. Specific alternative approaches to traditional theories of causation are appropriate in single-cause cases, whereas cases involving different causal mechanisms are more complex and require careful consideration. Policy and legal certainty require conceptually sound, balanced and welldeveloped alternatives to traditional approaches to causation in medical law, without unduly favouring plaintiffs or defendants in medical law cases. Public Law LLD Unrestricted 2019-06-02T11:39:36Z 2019-06-02T11:39:36Z 2019/04/04 2018 Thesis Politis, A 2018, An analysis of causation in medical law, LLD Thesis, University of Pretoria, Pretoria, viewed yymmdd <http://hdl.handle.net/2263/69974> A2019 http://hdl.handle.net/2263/69974 en © 2019 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. application/pdf University of Pretoria |
| spellingShingle | UCTD An analysis of causation in medical law |
| title | An analysis of causation in medical law |
| title_full | An analysis of causation in medical law |
| title_fullStr | An analysis of causation in medical law |
| title_full_unstemmed | An analysis of causation in medical law |
| title_short | An analysis of causation in medical law |
| title_sort | analysis of causation in medical law |
| topic | UCTD |
| url | http://hdl.handle.net/2263/69974 |