|
|
Post by cjm on Jul 19, 2018 9:00:38 GMT
An example of an US attempt to stop malicious lawsuits Breitbart's readers don't seem to like it much. Could they really believe that the hotel should be held liable for the shooting? Must come from having grown up in the USA.
There is a socialist tendency in modern law to hold those who can pay, responsible. I suspect that the Breitbart readers follow that tendency. Our own law holding employers liable for delicts (torts), committed by employees, is a case in point. Although basic idea is that the person should commit the delict in the course of his employment and in pursuance of his employers business, that basic idea has been greatly hollowed out, to the extent even that an employee acting outside his instructions and mandate can sometimes cause an employer to be held liable.
|
|
|
|
Post by cjm on Aug 1, 2018 7:09:05 GMT
|
|
|
|
Post by cjm on Dec 15, 2018 17:34:58 GMT
|
|
|
|
Post by cjm on Mar 14, 2019 7:05:42 GMT
|
|
|
|
Post by cjm on Mar 28, 2019 11:29:11 GMT
|
|
|
|
Post by cjm on Jul 13, 2019 9:26:01 GMT
|
|
|
|
Post by Trog on Jul 13, 2019 15:21:30 GMT
This report was a pleasure to read, actually. Apart from the Headline and the Byline, which were misleading and partisan (probably not the authors' fault, but the editor's), I found it to be knowledgeable, well researched, clearly constructed and fairly objective. In fact, of a quality I rarely encounter, anymore. I was not previously aware of the asbestos angle. It does change my perception of this a bit, but not by too much. It seems that asbestos is commonly found as a contaminant of talcum powder. As far as this is concerned, and accepting the quoted article as an accurate reflection, J&J actually behaved exemplary. We must remember that until about the 70ties, asbestos was not even thought of as harmful, and used all over the place. There were even cigarettes with asbestos filters marketed as protecting its users of the harmful effects of smoking.  J&J's concern with asbestos started in the 1950's already, and not with it as a health risk, but as a substance that interferes with the quality of their product. So they actively developed procedures to test for it, remove it and to control the maximum amount present. As far as I can ascertain, they never exceeded anything specified by the FDA. (Actually, I don't even know how the FDA was involved at all, my perception is that talcum powder is way outside of their mandate). But when it became apparent that asbestos may pose a health risk, J&J launched their own research programmes and instituted Quality Assurance measures. I don't know how the legal world goes about handling these things, but in the science world things would work mostly like this: Asbestos is a fairly ubiquitous substance - I suspect that even here where I am sitting know I'm breathing in some asbestos particles. Anybody who developed some sort of disease would have to demonstrate all kinds of things, such as: 1. It was caused by asbestos. 2. That the asbestos was acquired through the use of J&J Talcum Powder. 3. That she was never exposed to any other source of asbestos. 4. She would NOT have developed cancer if she did not use J&J Talcum Powder. And so forth. I cannot see anybody doing any of these things. About the only sensible argument to make is: "J&J knew that their Talcum Powder may sometimes contain traces of asbestos. They should've said so on some label, together with the warning that asbestos may cause cancer. In which case I wouldn't have used it." But that still does not cover the case that she would have developed cancer anyway, even if she did not use J&J. Anyway, J&J were evidently worried about this themselves, and as far as I can see, they believed that their product was safe. Let's get this in perspective. In almost anything I eat, there will be traces of: Arsenic. Lead. Mercury. Uranium. Strychnine. DDT. E. Coli. Salmonella. Clostridium. All of these things are deadly, and even in very small quantities can kill me very quickly. But at some stage, those quantities become so small that they no longer pose a risk. In fact, there is an old and not entirely discredited school of thought that exposure at these levels actually start to be beneficial. So, even if these substances are present, I cannot expect of the supplier to continuously test for all of them, and print a label on the product stating that if I use it I could die. With regard to J&J, all of the above applies only to the possibility of developing a particular sort of lung cancer called mesothelioma. When it comes to developing ovarian cancer, it's just simply: No deal. I would require an enormous amount of thoroughly researched explaining of how a minute quantity of asbestos possibly present in Baby Powder can migrate to the mesothelium of the ovaries. |
|
|
|
Post by cjm on Jul 13, 2019 17:50:40 GMT
... I don't know how the legal world goes about handling these things, but in the science world things would work mostly like this: Asbestos is a fairly ubiquitous substance - I suspect that even here where I am sitting know I'm breathing in some asbestos particles. Anybody who developed some sort of disease would have to demonstrate all kinds of things, such as: 1. It was caused by asbestos. 2. That the asbestos was acquired through the use of J&J Talcum Powder. 3. That she was never exposed to any other source of asbestos. 4. She would NOT have developed cancer if she did not use J&J Talcum Powder. And so forth. ... An informative post.
I am getting more and more disillusioned with the legal world. It runs after every new fad and no longer makes any serious attempt to try and unify the law or to stick to principle. It is so taken with its powers to *legislate* that any restraint in this regard becomes the exception rather than the rule. The law is becoming a "jungle of single instances". Not sure where this quote is from, but it has been used before. Part of the reason for this development is the use of the law for social engineering. Originally, the law concerned itself with the regulation of interpersonal relationships, keeping peace and order and preventing family feuds. It did not have administrative penalties for traffic offenses, firearms were hardly regulated, hate speech (the latest fad) did not exist, it did not try and change the race of people in certain occupations and a host of activities, we do not even notice anymore, were left to informal control. The law has multiplied itself to the extent that it is possible to go criminally after any person no matter how law abiding that person is.
Anyway. The issue you are touching on is causality. I think that the subject suffers from platitudes and can be improved by reference to statistics and probability - and even Hume's musings. In the meantime the subject is governed by vague generalisations and is faring rudderless before the wind.
In South African law we now have something called a supple test for causation which basically means that x is said to cause y when a judge thinks that it does:
"Dudley Lee contracted TB in prison and sued the state for damages. Because Lee could not prove that he would not have contracted TB if the department of correctional services had taken reasonable measures to prevent his illness, the Supreme Court of Appeal (SCA) dismissed his case. In other words, there was no causal link between what the department did wrong, and his contracting TB. Lee appealed to the Constitutional Court. In a majority judgment, the Court found that South African law allows for a more “flexible” approach, Trengove told the court on Monday.
He said that the ConCourt held that a plaintiff does not have to establish a solid causal link, but only to establish “that the wrongful conduct was probably a cause of the loss”. "
This vacuous generalisation now is the guiding principle on causality.
From the ConCourt judgement (which uses the word *reasonableness* and related inflections as if it is a magic wand):
|
|
|
|
Post by cjm on Jul 13, 2019 19:18:11 GMT
As an example of the fragmentation of the judicial system (and the lack of coherence) even in structure, see the following dated extract from Van Hulsen's thesis. Although dated, it in all likelihood still reflects the vast number of courts and tribunals in South Africa, making a uniform approach to law and legal principles impossible. I have removed references from the extract.
"...
p318
1 2 1 The courts system
Unlike a number of continental European legal systems, South Africa does not have a uniform
courts system. I 15 Different courts operate at various levels, staffed by personnel ranging from
judges with years of practical experience and full legal training to lay assessors. Further, not
all the courts fall exclusively under the ambit of the judiciary. While the judicial process is
generally vested in the judiciary and its ordinary courts, a plethora of additional courts or
tribunals exists outside the judiciary.
1 2 1 1 Superior courts
(a) The Constitutional Court
The Constitutional Court is a novelty in the South African legal system. 117 It is the highest
South African court in all matters concerning the interpretation and application of the
319
Constitution.118 Above all, this includes the enforcement of the Bill of Rights 119, the power to
review the constitutionality of executive and legislative acts 120 and the determination of
constitutional disputes between organs of state. 121 The Constitutional Court is not an integral
part of any of the other superior courts of South Africa, particularly the Supreme Court of
Appeal. ...
(b) The Supreme Court of Appeal
According to ss 166 (b) and 168 (3) of the Constitution of the Republic of South Africa of
1996, the Supreme Court of Appeal is the highest court of appeal in South Africa except in
constitutional matters. 123 It is devoid of any original jurisdiction. ...
Under the old dispensation, the Supreme Court of Appeal was the Appellate Division of the
Supreme Court of South Africa. It was formed in 1910 as the result of the political uniting
into the Union of South Africa of the four British Colonies: the Cape of Good Hope, Natal,
Orange River Colony and Transvaal. 126 In 1910, the establishment of a new structure of
superior courts within the unified country was widely welcomed. 127 The scheme adopted was
the creation of a uniform Supreme Court as superior court with different provincial and local
divisions128, including an appellate division. When in 1950 the possibility of lodging appeals
to the Privy Council was abolished, the Appellate Division became the highest court in the
country.
320
(c) The High Court of South Africa
The established structure of the four provincial and various local divisions of the Supreme
Court of South Africa was subject to change after the end of apartheid.!29 First, the South
West Africa Provincial Division ceased to be an integral part of the Supreme Court when
South West Africa was granted independence in 1990. Then, the High Courts of the former
so-called independent Homelands had to be re-integrated into the structure of the superior
courts of South Africa. Finally, under s 166 (c) of the Constitution, the provincial divisions
of the Supreme Court became divisions of the High Court of South Africa. However, item 16,
schedule 6 of the Constitution, requires that the future structure of the High Court be in
accordance with the newly created nine provinces.
To date, no such rationalisation has taken place. Pending these changes, the High Court
continues to consist of six provincial divisions!3! and three local divisions.132 For the time
being, the former TBVC supreme courts133 continue to function within the nine provinces,
although apparently not as provincial or local divisions of the High Court of South Africa.134
With regard to certain matters, the divisions of the High Court are courts of first instance.
They also hear appeals and review applications from the lower courts. Any constitutional
matter, except matters that are exclusively decided by the Constitutional Court, may also be
heard.
321
It is necessary to keep in mind that superior court judges are not considered civil servants in
the ordinary sense regardless of the fact that they adjudicate in the name of the state, and
receive monthly salaries and pensions from the state.
(d) Specialised superior courts
There are a number of special courts that have been established to bring expertise to the
adjudication process in complex legal areas such as tax, labour, and trade marks or copyright
law. Some of these courts, for example the labour courts, are courts in the ordinary sense. 138
Others, for example the income tax courts, are in fact tribunals which adjudicate in a highly
formal (court-like) manner. .... These court tribunals are the highest administrative
courts in South Africa. At present, the following nine special courts have been established: a
Maritime Court, water courts, patents courts, trade marks courts, copyright courts,
expropriation and compensation courts, restrictive practices courts, a Land Claims Court, and
income tax courts. Except perhaps for the latter, these court tribunals enjoy the same status as
the superior courts of law.
1 2 1 2 Inferior courts
Prior to 1917, each province retained its own pre-Union magistrates' courts system.
Thereafter, a unitary system of magistrates' courts in 300 magisterial districts was created. 140
The magistrates courts are courts of first instance and have both criminal and civil
jurisdiction, although not unlimited. Serious matters (civil and criminal) are confined to
regional courts, which therefore have geographically extended jurisdiction. 141 This scheme
will undergo some significant changes when the Magistrates' Courts Amendment Act of 1993
322
comes into operation. 142 A more pronounced distinction between the civil and criminal
functions of the lower courts is envisaged, whereby magistrates' courts and regional courts
will deal with criminal matters only. Following the same scheme, civil matters of minor
importance will be dealt with by so-called civil courts for districts, and divisional civil courts
will receive extended jurisdiction in civil matters. ...
Other inferior courts are the children' and the family courts. 145 These courts are administered by magistrates. In addition there operate the small claims courts and the short process courts. These courts are administered by so-called commissioners or adjudicators.146 Until 1993, magistrates, commissioners and adjudicators were part of the civil service or they were volunteers, appointed by the Minister of Justice. In any event, they continued to be subject to direction from above. There was no question of inferior judges being truly independent judicial officers. In this respect, their institutional position was considerably different from that of superior court judges. ... 1 2 1 3 Administrative tribunals Besides the more formalised court tribunals to which we have already referred above, there
are a vast number of less formal tribunals that take an active part in the adjudication process,
including over 20 appellate boards alone to which one can turn in order to have an
administrative decision reconsidered. To mention just a few, there are licensing appeal boards, town and regional planning appeal boards, immigration appeal boards, the Publications Appeals Board, the Rent Control Board and the Workmen's Compensation Commissioner. 148 There are, further, numerous local administrative control boards of first instance; for example, 323 local road and air transportation boards, rent boards and liquor boards. 149 Registrars in certain branches of the public service also adjudicate. There are inter alia the Registrars of Trade Marks, Banks, Pension Funds, Patents, Deeds, Companies and Building Societies. 150 The number of administrative tribunals and the variety of procedural rules, staffing or appeal procedures is mind boggling. At present, there is talk of introducing an administrative appeal court in order to unravel the existing state of confusion. 151 1214 Courts of chiefs and headmen ewn.co.za/2019/03/12/chaos-in-parliament-as-mps-vote-on-traditional-courts-bill "
|
|
|
|
Post by Trog on Jul 13, 2019 20:39:09 GMT
... I don't know how the legal world goes about handling these things, but in the science world things would work mostly like this: Asbestos is a fairly ubiquitous substance - I suspect that even here where I am sitting know I'm breathing in some asbestos particles. Anybody who developed some sort of disease would have to demonstrate all kinds of things, such as: 1. It was caused by asbestos. 2. That the asbestos was acquired through the use of J&J Talcum Powder. 3. That she was never exposed to any other source of asbestos. 4. She would NOT have developed cancer if she did not use J&J Talcum Powder. And so forth. ... An informative post. I am getting more and more disillusioned with the legal world. It runs after every new fad and no longer makes any serious attempt to try and unify the law or to stick to principle. It is so taken with its powers to *legislate* that any restraint in this regard becomes the exception rather than the rule. The law is becoming a "jungle of single instances". Not sure where this quote is from, but it has been used before. Part of the reason for this development is the use of the law for social engineering. Originally, the law concerned itself with the regulation of interpersonal relationships, keeping peace and order and preventing family feuds. It did not have administrative penalties for traffic offenses, firearms were hardly regulated, hate speech (the latest fad) did not exist, it did not try and change the race of people in certain occupations and a host of activities, we do not even notice anymore, were left to informal control. The law has multiplied itself to the extent that it is possible to go criminally after any person no matter how law abiding that person is. Anyway. The issue you are touching on is causality. I think that the subject suffers from platitudes and can be improved by reference to statistics and probability - and even Hume's musings. In the meantime the subject is governed by vague generalisations and is faring rudderless before the wind. In South African law we now have something called a supple test for causation which basically means that x is said to cause y when a judge thinks that it does: "Dudley Lee contracted TB in prison and sued the state for damages. Because Lee could not prove that he would not have contracted TB if the department of correctional services had taken reasonable measures to prevent his illness, the Supreme Court of Appeal (SCA) dismissed his case. In other words, there was no causal link between what the department did wrong, and his contracting TB. Lee appealed to the Constitutional Court. In a majority judgment, the Court found that South African law allows for a more “flexible” approach, Trengove told the court on Monday.
He said that the ConCourt held that a plaintiff does not have to establish a solid causal link, but only to establish “that the wrongful conduct was probably a cause of the loss”. " This vacuous generalisation now is the guiding principle on causality. From the ConCourt judgement (which uses the word *reasonableness* and related inflections as if it is a magic wand):
Well, I have no detail of the Lee case, but I was thinking, under what circumstances would I agree with the Constitutional Court? And of course it turns on 'probable cause' and 'reasonableness'. And actually I don't have a problem with that, as such. But both terms must be applied within some sort of framework which I don't know if it was adhered to in the Lee case - maybe it was. The first is that 'probable cause' must be demonstrated. It's not enough to just say: "Looks plausible". There must exists some body of common knowledge that, given certain circumstances - the experienced outcome is probable. In the Lee case: 1. He should have had to demonstrate that the prison services neglected to perform certain measures, the result of which it is common knowledge that it results in an increased probability to develop TB.
2. He would've had to detail what those measures are.
3. He would've had to supply references/studies confirming this.
4. He would've had to submit evidence that they were ignored.
And this pretty much summarizes the 'reasonableness' of any conclusion the court may come to - if this algorithm is adhered to, it will be a reasonable decision. But in your quote, it looks to me as if 'reasonableness' is being used in 2 distinct ways - first in relation to the 'reasonableness' of the defendant's conduct, as well as to the 'reasonableness' of reaching a conclusion in the absence of a strictly causal link. Therefore, for the court to make a 'reasonable' decision, it must also consider the defendant's reasons ('reasonableness') why he acted the way he did. In the Lee case, I suppose, correctional services could've: 5. Pleaded ignorance. Even though the measures detailed by Lee may have been in the public domain, it is quite feasible that it was not the responsibility of correctional services to have that knowledge or to implement those measures. 6. They could've submitted evidence that the measures detailed by Lee are inaccurate and ineffective. Or even that they had alternative, better measures in place. 7. They could've demonstrated that they do not have the resources available to implement those measures, so that it is really someone else's problem. And so forth. So, under these circumstances, I'd be okay with 'probable cause' and 'reasonableness'. I don't know if this was indeed what happened with the Lee case. And by the by: If the above framework is followed in the J&J Talcum Powder case, the court will almost certainly have to decide for J&J, against the claimants. Whereas, with the South African "Silicosis class action suit", I am not at all that sure! Although I always had the impression that the Chamber of Mines had substantial procedures in place to protect against silicosis - in which case they, too, should be okay. |
|
|
|
Post by cjm on Jul 14, 2019 8:49:09 GMT
An informative post. I am getting more and more disillusioned with the legal world. It runs after every new fad and no longer makes any serious attempt to try and unify the law or to stick to principle. It is so taken with its powers to *legislate* that any restraint in this regard becomes the exception rather than the rule. The law is becoming a "jungle of single instances". Not sure where this quote is from, but it has been used before. Part of the reason for this development is the use of the law for social engineering. Originally, the law concerned itself with the regulation of interpersonal relationships, keeping peace and order and preventing family feuds. It did not have administrative penalties for traffic offenses, firearms were hardly regulated, hate speech (the latest fad) did not exist, it did not try and change the race of people in certain occupations and a host of activities, we do not even notice anymore, were left to informal control. The law has multiplied itself to the extent that it is possible to go criminally after any person no matter how law abiding that person is. Anyway. The issue you are touching on is causality. I think that the subject suffers from platitudes and can be improved by reference to statistics and probability - and even Hume's musings. In the meantime the subject is governed by vague generalisations and is faring rudderless before the wind. In South African law we now have something called a supple test for causation which basically means that x is said to cause y when a judge thinks that it does: "Dudley Lee contracted TB in prison and sued the state for damages. Because Lee could not prove that he would not have contracted TB if the department of correctional services had taken reasonable measures to prevent his illness, the Supreme Court of Appeal (SCA) dismissed his case. In other words, there was no causal link between what the department did wrong, and his contracting TB. Lee appealed to the Constitutional Court. In a majority judgment, the Court found that South African law allows for a more “flexible” approach, Trengove told the court on Monday.
He said that the ConCourt held that a plaintiff does not have to establish a solid causal link, but only to establish “that the wrongful conduct was probably a cause of the loss”. " This vacuous generalisation now is the guiding principle on causality. From the ConCourt judgement (which uses the word *reasonableness* and related inflections as if it is a magic wand):
Well, I have no detail of the Lee case, but I was thinking, under what circumstances would I agree with the Constitutional Court? And of course it turns on 'probable cause' and 'reasonableness'. And actually I don't have a problem with that, as such. But both terms must be applied within some sort of framework which I don't know if it was adhered to in the Lee case - maybe it was. The first is that 'probable cause' must be demonstrated. It's not enough to just say: "Looks plausible". There must exists some body of common knowledge that, given certain circumstances - the experienced outcome is probable. In the Lee case: 1. He should have had to demonstrate that the prison services neglected to perform certain measures, the result of which it is common knowledge that it results in an increased probability to develop TB.
2. He would've had to detail what those measures are.
3. He would've had to supply references/studies confirming this.
4. He would've had to submit evidence that they were ignored.
And this pretty much summarizes the 'reasonableness' of any conclusion the court may come to - if this algorithm is adhered to, it will be a reasonable decision. But in your quote, it looks to me as if 'reasonableness' is being used in 2 distinct ways - first in relation to the 'reasonableness' of the defendant's conduct, as well as to the 'reasonableness' of reaching a conclusion in the absence of a strictly causal link. Therefore, for the court to make a 'reasonable' decision, it must also consider the defendant's reasons ('reasonableness') why he acted the way he did. In the Lee case, I suppose, correctional services could've: 5. Pleaded ignorance. Even though the measures detailed by Lee may have been in the public domain, it is quite feasible that it was not the responsibility of correctional services to have that knowledge or to implement those measures. 6. They could've submitted evidence that the measures detailed by Lee are inaccurate and ineffective. Or even that they had alternative, better measures in place. 7. They could've demonstrated that they do not have the resources available to implement those measures, so that it is really someone else's problem. And so forth. So, under these circumstances, I'd be okay with 'probable cause' and 'reasonableness'. I don't know if this was indeed what happened with the Lee case. And by the by: If the above framework is followed in the J&J Talcum Powder case, the court will almost certainly have to decide for J&J, against the claimants. Whereas, with the South African "Silicosis class action suit", I am not at all that sure! Although I always had the impression that the Chamber of Mines had substantial procedures in place to protect against silicosis - in which case they, too, should be okay.
The Lee case can be found here
I just mentioned the Silicosis case because Lee was conveniently summarized there. I have no idea what happened there, but the Lee case is the origin of the change in the view on causality.
The Lee case went through 3 courts of which the Court of Appeal is the odd one out, but there also was a minority decision in the Constitutional Court. All of which just shows the gamble in litigation.
The main problem Lee faced was that he could not show that he would not have contracted TB even if all the regulations were complied with.
The following extract from the ConCourt judgement gives the gist of the problem:
[22]The Supreme Court of Appeal found, that “it is just as likely as not that Mr Lee was infected by [an inmate] who the [responsible]authorities could not reasonably have known was contagious.”55 It concluded that the applicant’s difficulty is that—“he does not know the source of his infection. Had he known its source it is possible that he might have established a causal link between his infection and specific negligent conduct on the part of the [responsible] authorities. Instead he has found himself cast back upon systemic omission.But in the absence of proof that reasonable systemic adequacy would have altogether eliminated the risk of contagion, which would be a hard row to hoe, it cannot be found that but for the systemic omission he probably would not have contracted the disease. On that ground...the claim ought to have failed.”56In upholding the appeal, the Supreme Court of Appeal found that the applicant failed on a narrow factual point on the application of the but-for test, but was successful on all other elements of the delictual claim, including that Mr Lee was probably infected by a prisoner who had active TB while he was incarcerated.57
I think your 1-4 was found to be in favour of Lee. 6-7 was raised by the defendants. Still, the point being that he could have contracted TB even despite all regulations having been complied with. People contract the disease regularly despite not even being in prison.
It seems that Lee was incarcerated for 4 years while being a trial awaiting detainee (ie he was not even a convicted inmate). It also seems that he was eventually released without a conviction.
My view is that these facts probably played a larger role than acknowledged by the court. In fact, they would not have dared to reveal that it played a part because it should not have influenced a cold look at causality.
Even where there is a causal chain established by reference to reasonableness, the court also considers whether indeed it is reasonable to impose liability.
[74]The concern that a flexible approach to factual causation and the relaxation of the but-for test in appropriate cases may lead to limitless liability, especially in relation to omission cases, has been addressed by the development of the test of reasonableness in the wrongfulness enquiry. That enquiry now concerns the reasonableness of imposing liability on a defendant, and is not restricted to the reasonableness of the defendant’s conduct, which is an element of the separate negligence enquiry in our law.
Parroting *reasonableness* and *flexible* as if they are magical formulae.
What a foreign court would do in the case of J& J, I do not know, but suspect very much that the South African courts are not alone in bestowing largesse on claimants where they have a hunch that the defendant has the ability to pay (and to boot, is probably insured). I base this on the remarks by the SA court:
|
|
|
|
Post by cjm on Oct 23, 2019 5:27:17 GMT
|
|
|
|
Post by cjm on Jun 2, 2021 18:37:40 GMT
|
|
|
|
Post by cjm on Nov 6, 2021 16:38:27 GMT
|
|
|
|
Post by cjm on Aug 13, 2022 20:19:16 GMT
|
|
