INSURMOUNTABLE HURDLES IN THE PROOF OF CAUSATION IN PHARMACEUTICAL PRODUCT LIABILITY IN CAMEROON: PERSPECTIVES FOR REFORM

Abstract

A very critical issue in almost or all pharmaceutical product liability is deciding who has to be responsible for the injury in which compensation is being claimed. In order to be able to identify the responsible person, a causal link must be established with the product in question. The task seems very challenging for drugs because most often they are taken by ailing patients and establishing the link between the wrongful exposure and injury is a difficult task to go about and therefore undermines compensation. Pharmaceutical product liability often poses the problems of proof of causation. This problem stems from the toxic nature of the products which may be unknown or uncertain. It may be due to a combination of many factors which may cause the plaintiff’s injury and finally the injury may only show up many years after the individual must have taken the product. Many people who take action are faced with the problem of proving a breach and the link of causation. This paper, as such, revisits the perennial problem of causation in pharmaceutical liability. It seeks to examine the problems faced by claimants in proving their case due to causal difficulties. It goes further to examine the apparent high levels of scientific proof needed and the claimants’ burden of proof. In response to this problem of causation, this article proposes a flexible approach to causation by borrowing best practices from advanced jurisdictions such as Canada, the USA and the United Kingdom. This would assist victims who face difficulties in proving causation. The paper states that causation in Cameroon differs in application depending if the claimant is from the French speaking part of Cameroon which is of the civil law background or from the English speaking part of Cameroon which is of the Common Law background. Ultimately, harmonizing causation in the two systems would be of great advantage to victims of pharmaceutical products in Cameroon.