This dissertation seeks to argue that the doctrine of a loss of a chance should be adopted into South African law, specifically within the medical malpractice field. This doctrine allows for a physician to be held delictually liable for causing a loss of a chance of recovery or survival in medical misdiagnosis cases where a physician negligently failed to diagnose a curable disease, and the patient is thus harmed by or succumbs to such a disease. It is this writer's objective to demonstrate why such a doctrine ought to be introduced into South African delictual law as a secondary claim which is to be available once a claimant is unable to meet the traditional test for causation, and then evaluate in which manner this doctrine should be integrated into the law, keeping in mind South Africa's law of delict and the court's past practices in developing delictual principles. Two different approaches predominately adopted in other jurisdictions in order to overcome the concerns regarding how the doctrine disregards the causation standard will be discussed. The first approach, the 'substantial possibility' approach, calls for the relaxation of the causation standard in specific cases, whilst the second approach, the 'pure chance' approach, views the loss of a chance as an autonomous injury in and of itself. Each of the two approaches are evaluated in relation to South Africa's delictual law, as well as its judiciary's past practices in developing delictual principles. By doing so this writer will illustrate which approach is more beneficial and suitable within the South African delictual law context. It is this writer's contention that, in order to ensure the effectiveness of the doctrine, it would be wiser to introduce the loss of a chance doctrine by ways of wrongfulness, whereby the court could create a new harm which is wrongful in the eyes of the law if it holds that it is reasonable, in terms of public policy and the views of the community, to hold a physician responsible for negligently causing the patient to lose a chance of survival or a cure. By means of wrongfulness, the loss of a chance doctrine can therefore be integrated into South African delictual law on a strong fundamental foothold as to not impeach and threaten the effectiveness of the doctrine in future.

“Contributory intent” refers to the situation where, besides the defendant being at fault and causing harm to the plaintiff, the plaintiff also intentionally causes harm to him- or herself. “Contributory intent” can have the effect of either excluding the defendant’s liability (on the ground that the plaintiff's voluntary assumption of risk or intent completely cancels the defendant's negligence and therefore liability), or limiting the defendant’s liability (where both parties intentionally cause the plaintiff's loss thereby resulting in the reduction of the defendant’s liability). Under our law the "contributory intent" of the plaintiff, can either serve as a complete defence in terms of common law or it can serve to limit the defendant's liability in terms of the Apportionment of Damages Act 34 of 1956. The “Apportionment of Loss Bill 2003” which has been prepared to replace the current Act provides for the applicability of “contributory intent” as a defence limiting liability, but it is yet to be promulgated. / Criminal and Procedural Law

By the end of the twentieth century, and after a long line of conflicting case law, the question about the basis of liability in nuisance was settled: in Scotland, damages are awarded only upon proof of fault (RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC (HL) 17). Fault, in turn, can adopt many forms: malice, intention, recklessness, negligence, and conduct causing a special risk of abnormal damage (Kennedy v Glenbelle Ltd 1995 SC 95). Many aspects of this seemingly clear picture, however, remain problematic. On the one hand, the way in which this model is interpreted and applied gives place to particular forms of liability that can actually be characterised as strict. On the other hand, two other areas of the law of neighbours that overlap with the scope of nuisance do not fit entirely this model, namely the regulation of disputes over uses of water and of those arising from withdrawal of support. The main argument of this thesis is that damages claims in the context of neighbourhood are governed by two distinct rules: a general fault-based liability rule for nuisance, and an exceptional strict liability rule for abnormally dangerous conduct. For the first of these rules, the thesis offers an evaluation of the fault model adopted in Kennedy v Glenbelle Ltd, explaining the interaction between its different elements and highlighting the developments that can result in forms of strict liability. For the second of these rules, the thesis develops an analysis of its elements and nature, as well as a proposal that delineates its scope of application. This two-rule model offers a justification for the current structure of the law applicable to disputes over uses of water. The strict liability rule applicable to interferences with the natural flow of watercourses, traditionally explained as based upon the infringement of property rights, is better explained as danger-based. The regulation of disputes arising from withdrawal of support, however, is not consistent with this model, even though they have also been characterised as nuisances. It is argued that this framework entails unjustified inconsistencies, both internal and by reference to the model proposed, and that it should be adjusted accordingly.

Delictual liability of natural persons in environmental protection is the topic that represents the intersection of several branches of law. Passing the new penal code brings to criminal law some news in the branch of environmental protection. The purpose of my thesis is to describe the general conditions of delictual liability and then point out to the specifics of the particular types of delicts. The aim of the thesis is also to compare the responsibility for administrative offences and liability for crimes. I divided my thesis into two main parts - the general part and the special part. My thesis contents fourteen chapters, which are dealing with different problems of liability in environmental protection.

Šio darbo tikslas – išanalizuoti ir atskleisti nenugalimos jėgos (force majeure) koncepciją, jos esmę, turinį, įvertinti nenugalimos jėgos reglamentavimą bei taikymą sutartinėje ir deliktinėje atsakomybėje, lyginant šio instituto reglamentavimą Lietuvos ir užsienio valstybių teisėje bei interpretavimą teismų praktikoje. Šiam tikslui pasiekti darbe visų pirma aptariami bendrieji teoriniai nenugalimos jėgos klausimai, pateikiama Lietuvos, užsienio valstybių teisės aktuose bei tarptautinės komercinės teisės dokumentuose įtvirtinta nenugalimos jėgos samprata, analizuojami jos reglamentavimo šiuose dokumentuose ypatumai. Antrajame šio darbo skyriuje aptariami įvykiai, galintys sudaryti nenugalimos jėgos institutą, atskleidžiami teisės doktrinoje susiformavę du požiūriai į nenugalima jėga pripažįstamas faktines aplinkybes. Remiantis Lietuvos bei užsienio valstybių teisės doktrina ir teismų praktika, skyriuje taip pat analizuojamos nenugalimos jėgos taikymo sąlygos sutartinėje ir deliktinėje atsakomybėje, jų pagrindu nenugalimos jėgos institutas atribojamas nuo jam giminingų frustracijos bei pasikeitusių aplinkybių institutų. Trečiajame skyriuje pateikiama nenugalimos jėgos teisinių pasekmių analizė, atribojamos nenugalimos jėgos aplinkybių sukeliamos teisinės pasekmės sutartinės ir deliktinės atsakomybės atvejais. Ketvirtasis šio darbo skyrius skirtas sutartinių nenugalimos jėgos sąlygų bei jų įtraukimo į sutartis problematikai atskleisti. Jame aptariama šalių galimybė sutartyje... [toliau žr. visą tekstą] / The aim of this paper is to analyse and reveal the concept of force majeure, the core of this concept and its matter, to evaluate the regulation and application of force majeure theory with regard to contractual and delictual liability comparing the regulation of this concept in Lithuanian and other foreign countries statutory law and interpretation in those countries case law. For the attainment of this purpose primarily in this paper are considered the general questions of force majeure doctrine, there is proposed the conception of force majeure, which is included in statutory provisions of Lithuania and other foreign countries as well as in documents of international commercial law, there are analysing the peculiarities of regulation of force majeure conception in aforementioned documents. In the second chapter of this paper are considered the events, which may constitute force majeure, by describing two academic approaches to factual circumstances, which may be acknowledged as force majeure events. With reference to jurisprudence and case law of Lithuania and other foreign countries in this chapter are also analysed the conditions of application of force majeure doctrine in contractual and delictual liability by setting limits on force majeure and other related doctrines as frustration and hardship. In the third chapter of this paper is proposed the analysis of legal consequences of application of force majeure doctrine by limiting effects of force majeure events in... [to full text]

Delictual liability of natural persons in the environmental protection I have chosen the subject delictual liability of natural persons in environmental protection for topic of my Master's degree thesis. The first reason why I have opted for this subject is due to the fact the environment is present everywhere and is a resource that needs to be protected as it is necessary to the human kind to survive. The law is one of the most powerful tools that can help protecting the environment. The second reason is that it does allow me to link several other law areas of interest which are administrative, criminal and environmental. The thesis contains three main parts. The first one is mainly dedicated to the legal liability while focusing on the responsibility in the environmental law. Also are mentioned the fundamental principles of the delictual liability in the Constitution. The second part relate to the criminal liability of natural persons in the environmental protection, starting from the basics of the international and European Union law. Further to this I have reviewed the past history in the Czech Republic, with supporting dated examples, showing how effectively the environment has been preserved by the criminal law. I have continued with a review of the current situation of how the environment is being...

This thesis' main focus lies in the analysis of the new statutory provisions pertaining to the civil liability for damage and identifying the differences between the old Civil Code (Act No. 40/964 Coll.) and the newly enacted Civil Code (Act No. 89/2012 Coll.), which brought about major changes with respect to the traditional regulation of liability for damage, which dated back to the enactment of Austrian ABGB in 1811. In this thesis I will try to analyse these changes and critically assess their impact and improvements over the old regulation and bring forward the controversial points and drawbacks of the new Civil Code. In the first and mostly theoretical part of the thesis I will focus mainly on the analysis of the new concept of civil liability which differs from the major view of the civil theory. I will also focus on the change of terminology resulting from these conceptual changes. The second part of this thesis will be less abstract and focus more on the new differentiation between the contractual liability for damage, i. e. liability arising out of the breach of a contract, and the delictual liability for damage, which arises out of the acts violating the statutory provisions (the written law). This thesis consists of three main sections, which are further divided into subsections. The...

In the recent past South Africa saw an increase in participation in school sport concomitant with an increase in litigation awareness in society. Legal accountability based on damage suffered in the participation in sport has become more common, introducing an additional dimension to risk management by the educator. Learner safety is one of the key aspects in a school. Educator accountability with regard to the safety of learners in school sports is a focus of attention. An effective risk management programme to limit injuries and risks to participants in school sports must be developed. Risk management is the prime instrument by which injuries and the potential exposure of the educator or school to damage and legal accountability can be reduced or prevented. Some aspects of legal risk management are crucial for the educator's duty of care during coaching and the educator's legal duty with regard to the participants' safety. The educator must possess enough legal knowledge to successfully carry out his duty of care. This research will critically assess the safety strategies and the legal risk management of participation in school sports in South Africa. To be able to do this, I determined which common-law and legally accountable determinants can be applicable and what role they will play to ensure the safety of learners in schools. Firstly a literature study in legal risk management in school sports was done. This study found that the educator's responsibilities and obligations are determined by common-law and case law determinants. An empirical investigation was launched. Interviews were conducted with educators involved in sports in the Dr Kenneth Kaunda district of the North-West Province. The topic was the current state of affairs in risk management in school sport. The participants' perceptions of legal risk management were discussed and their views analysed, whereupon findings and recommendations were made. The general impression based on the results was that the educators experience huge uncertainty and are seriously uninformed about with regard to delictual liability towards learners under their care. It was found that educators do not have sufficient legal knowledge to comply with the requirements set by law. Therefore the security of the participants (on grounds of their participation) and the educators (on grounds of their legal accountability) is jeopardised. It is recommended that all tertiary institutions develop training programmes to empower educators and student educators with knowledge of legal procedures in education. It is further recommended that the education department as employer together with governing bodies, principals and trade unions support such training programmes- now and in the future. Finally, educators, school management teams and governing bodies should be more risk-aware and more pro-active in preventing sport-related injuries, because of the ignorance regarding guidelines for risk management in sports and standards of security. The complex nature of our society makes knowledge of the legal aspects in education by all role players in education not only desirable, but mandatory. / MEd (Education Law), North-West University, Potchefstroom Campus, 2012

In the recent past South Africa saw an increase in participation in school sport concomitant with an increase in litigation awareness in society. Legal accountability based on damage suffered in the participation in sport has become more common, introducing an additional dimension to risk management by the educator. Learner safety is one of the key aspects in a school. Educator accountability with regard to the safety of learners in school sports is a focus of attention. An effective risk management programme to limit injuries and risks to participants in school sports must be developed. Risk management is the prime instrument by which injuries and the potential exposure of the educator or school to damage and legal accountability can be reduced or prevented. Some aspects of legal risk management are crucial for the educator's duty of care during coaching and the educator's legal duty with regard to the participants' safety. The educator must possess enough legal knowledge to successfully carry out his duty of care. This research will critically assess the safety strategies and the legal risk management of participation in school sports in South Africa. To be able to do this, I determined which common-law and legally accountable determinants can be applicable and what role they will play to ensure the safety of learners in schools. Firstly a literature study in legal risk management in school sports was done. This study found that the educator's responsibilities and obligations are determined by common-law and case law determinants. An empirical investigation was launched. Interviews were conducted with educators involved in sports in the Dr Kenneth Kaunda district of the North-West Province. The topic was the current state of affairs in risk management in school sport. The participants' perceptions of legal risk management were discussed and their views analysed, whereupon findings and recommendations were made. The general impression based on the results was that the educators experience huge uncertainty and are seriously uninformed about with regard to delictual liability towards learners under their care. It was found that educators do not have sufficient legal knowledge to comply with the requirements set by law. Therefore the security of the participants (on grounds of their participation) and the educators (on grounds of their legal accountability) is jeopardised. It is recommended that all tertiary institutions develop training programmes to empower educators and student educators with knowledge of legal procedures in education. It is further recommended that the education department as employer together with governing bodies, principals and trade unions support such training programmes- now and in the future. Finally, educators, school management teams and governing bodies should be more risk-aware and more pro-active in preventing sport-related injuries, because of the ignorance regarding guidelines for risk management in sports and standards of security. The complex nature of our society makes knowledge of the legal aspects in education by all role players in education not only desirable, but mandatory. / MEd (Education Law), North-West University, Potchefstroom Campus, 2012

“Contributory intent” refers to the situation where, besides the defendant being at fault and causing harm to the plaintiff, the plaintiff also intentionally causes harm to him- or herself. “Contributory intent” can have the effect of either excluding the defendant’s liability (on the ground that the plaintiff's voluntary assumption of risk or intent completely cancels the defendant's negligence and therefore liability), or limiting the defendant’s liability (where both parties intentionally cause the plaintiff's loss thereby resulting in the reduction of the defendant’s liability). Under our law the "contributory intent" of the plaintiff, can either serve as a complete defence in terms of common law or it can serve to limit the defendant's liability in terms of the Apportionment of Damages Act 34 of 1956. The “Apportionment of Loss Bill 2003” which has been prepared to replace the current Act provides for the applicability of “contributory intent” as a defence limiting liability, but it is yet to be promulgated. / Criminal and Procedural Law / LL. M.