Law / In this essay I consider whether or not there is a need for the creation of the crime of negligent assault. I start off by giving a brief exposition of the current position in South Africa with regard to assault. From this exposition it becomes clear that negligent assault is not recognised in South African law. I give a brief summary of the concepts of intention and negligence. After this I briefly discuss what criteria should be considered before invoking the criminal sanction. In the next section of the essay I consider the need for, and the benefits of, creating the crime of negligent assault. Lastly, I critically analyse whether the legislature should intervene or not. My conclusion is that the social benefits of criminalising the conduct do in fact outweigh the negative implications of not criminalising it, and that the legislature would not err if it were to create the crime of negligent assault. / LL.M.

This study investigated the effect of arguments for and against defendant's behavior being negligent and for and against defendant's behavior being a cause of damages to the plaintiff. The findings were (a) that negligence arguments affected negligence ratings, causation ratings, and verdicts and (b) that causation arguments affected none of the measures.

Within the framework of the Story Model of juror decision making, using an actual personal injury automobile accident case, this thesis investigated the influence of mock jurors??? emotional response to an injured plaintiff on decisions about defendant liability and the plaintiff???s contributory negligence as well as the efficacy of procedural legal safeguards to control any such biases. Study One validated the Story Model of juror decision making in individual decisions, and revealed that mock jurors failed to consider the requisite legal elements in rendering a verdict. Study Two ascertained participants??? affective response to a mock trial in which evidence relevant to liability was held constant and the severity of the plaintiff???s injuries differed. A multiple mediator model revealed that sympathy for the plaintiff and anger toward the defendant mediated the relation between injury severity and determinations of the relative culpability of the parties. Study Three demonstrated that mock jurors exposed to emotionally evocative damages evidence constructed stories about the defendant???s liability and the plaintiff???s contributory negligence that differed from those constructed in response to emotionally neutral evidence. Study Four showed that the process of group deliberation failed to correct the misuse of evidence relevant to damages in liability decisions. However, Study Five demonstrated that judicial admonitions both acknowledging mock jurors??? emotional response to the evidence and explaining why this response was irrelevant to judgments of liability moderated the influence of emotional states on decisions about liability and contributory negligence. Study Six indicated that jury-eligible citizens??? conceptions of negligence law closely matched the normative model of negligence law, and that their mental models of negligence cases that ended successfully for the plaintiff featured more severely injured plaintiffs than those that ended unsuccessfully for the plaintiff. These studies addressed analytical and methodological weaknesses in previous research, resolved conflicting findings on fusion of liability and damages, provided direct empirical support for the central premise of the Story Model of juror decision making, and advanced knowledge on the influence of emotion on decisions in civil legal cases.

No description available.

Criminality takes many forms; a homicide may be defined as criminal activity, as would identity theft--both acts are criminal, yet the responses garnered are quite different. What makes the response for these two acts different? Perhaps societal reaction and tolerance towards these behaviours. Why is it that popular socio-legal discourse takes the position that societal reaction is the result of the information it receives? The focus of my research was to determine whether language affects perception and whether this impacts police and judicial practice. The focus was on the discourse of legal and popular language used to describe motor vehicle incidents that encompass a criminal component of injury and or fatality. I examined the impact of terminology on public and legal perception, as well as societal reactions and tolerance, which were the underlying issues of examination. However, in order to understand reaction and tolerance, I found it important to study the factors that contributed towards public and legal perception. The method of analysis was to examine the terminology used to depict and deliver the news of such incidents. For the purposes of this investigation vehicular negligence is defined as any act or behaviour that contravenes the British Columbia Motor Vehicle Act or is a Criminal Code of Canada offence related to the operation of a motor vehicle. Under the law, a negligent act does not require mens rea, which literally means to have a guilty mind. Therefore, in order to be considered guilty, a person does not necessarily need to have the mental culpability of forecasting or have the intention of inflicting harm. I restricted my area of focus to the region of British Columbia for two primary reasons. First, British Columbia has a higher than average injury and fatality rate resulting from motor vehicle incidents when compared to other provinces in Canada. Second, the area of focus was limited to this province as the result of my direct personal experiences in this provincial context. The parameters of my case study, as indicated above, included only those incidents of vehicular negligence that resulted in bodily injury and or fatality. The form of negligence assessed was not restricted to a specific type of act; rather it included any act that would be considered negligent behaviour on the roads, including but not limited to, driving in excess of the posted speed limit, impaired driving, carelessness, hit and runs, and so forth. My interest was to examine the ways in which these acts are perceived and addressed in public (media) and legal (court) discourse. Focusing on five randomly selected cases involving vehicular negligence, thematic analysis of face-to-face interviews, discourse analysis, and autoethnography were the primary methodologies used for the investigation. At present, there is no shortage of literature examining the cause and effect of specific behaviours in relation to motor vehicle incidents. The shortcoming, however, is that the focus of the literature is primarily centred on the consequences of drunk driving as it relates to the mismanagement of vehicles and the subsequent legal and civil litigations. Some of the literature also addresses social and health costs related to the severity of vehicle negligent incidents. However, there is a dearth of research examining the role of public and legal perceptions as they pertain to vehicular negligence and the impacts on the way in which vehicular negligent incidents are addressed within the courts. The results of this research indicated that terminology does in fact have an impact on perception, and thus negligent incidents on the roads should be referred using terms that are accurate descriptions. Terms such as accidents construe an incorrect understanding of the implications from these types of acts that are a leading health and safety epidemic globally.

Within the framework of the Story Model of juror decision making, using an actual personal injury automobile accident case, this thesis investigated the influence of mock jurors??? emotional response to an injured plaintiff on decisions about defendant liability and the plaintiff???s contributory negligence as well as the efficacy of procedural legal safeguards to control any such biases. Study One validated the Story Model of juror decision making in individual decisions, and revealed that mock jurors failed to consider the requisite legal elements in rendering a verdict. Study Two ascertained participants??? affective response to a mock trial in which evidence relevant to liability was held constant and the severity of the plaintiff???s injuries differed. A multiple mediator model revealed that sympathy for the plaintiff and anger toward the defendant mediated the relation between injury severity and determinations of the relative culpability of the parties. Study Three demonstrated that mock jurors exposed to emotionally evocative damages evidence constructed stories about the defendant???s liability and the plaintiff???s contributory negligence that differed from those constructed in response to emotionally neutral evidence. Study Four showed that the process of group deliberation failed to correct the misuse of evidence relevant to damages in liability decisions. However, Study Five demonstrated that judicial admonitions both acknowledging mock jurors??? emotional response to the evidence and explaining why this response was irrelevant to judgments of liability moderated the influence of emotional states on decisions about liability and contributory negligence. Study Six indicated that jury-eligible citizens??? conceptions of negligence law closely matched the normative model of negligence law, and that their mental models of negligence cases that ended successfully for the plaintiff featured more severely injured plaintiffs than those that ended unsuccessfully for the plaintiff. These studies addressed analytical and methodological weaknesses in previous research, resolved conflicting findings on fusion of liability and damages, provided direct empirical support for the central premise of the Story Model of juror decision making, and advanced knowledge on the influence of emotion on decisions in civil legal cases.

Thesis (Ph. D.)--West Virginia University, 2008. / Title from document title page. Document formatted into pages; contains iv, 74 p. Includes abstract. Includes bibliographical references (p. 70-74).

Law / In this essay I consider whether or not there is a need for the creation of the crime of negligent assault. I start off by giving a brief exposition of the current position in South Africa with regard to assault. From this exposition it becomes clear that negligent assault is not recognised in South African law. I give a brief summary of the concepts of intention and negligence. After this I briefly discuss what criteria should be considered before invoking the criminal sanction. In the next section of the essay I consider the need for, and the benefits of, creating the crime of negligent assault. Lastly, I critically analyse whether the legislature should intervene or not. My conclusion is that the social benefits of criminalising the conduct do in fact outweigh the negative implications of not criminalising it, and that the legislature would not err if it were to create the crime of negligent assault. / LL.M.

A medical negligence case presented to the court is based on averments of neglected duty of care of the defending doctor, a duty owed in accordance with the law of delict, and alternatively and/or accumulatively averments that the contractual agreement between the complainant and the defending doctor was not honoured. In order to prove failure of duty of care and/or breach of agreement, the complainant bears the onus of proof to present to the court reliable medical evidence that would enable the court to reach a decision. The courts have ruled for and against many plaintiffs throughout the years, setting the standards and yardsticks for the requirements of medical negligence. The value or lack thereof of the medical evidence presented came under the magnifying glass in the case of Michael vs Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188 SCA and the court indicated the necessity for a "collective mind" from the medical profession. Brilliant legal writers published on this topic and the search and need created this dissertation. The study sets as goal to scrutinize the quality of medical evidence in general, and more specific the Michael-case. From a wide perspective medical evidence was researched, and the term evidence-based medicine led the study to an existing "collective mind" of the medical profession. The study investigated the history and development of evidence-based medicine in order to evaluate whether it can be seen as the "collective mind" of the medical profession. Satisfied that the "collective mind" was found the study tested the available medical evidence, randomly searched, against specific medical issues in the Michael-case and the study compiled substantial medical evidence to work with. An independent expert was consulted and the medical evidence was scrutinized with commentary, explanation and the basis formulated for negligence. The Michael-case was deconstructed and subsequently reconstructed, and the outcome predictably different, based on sound medical evidence. The study explained and warned against exploitation of the statistical data and incorrect interpretation of results. The study concluded that the court as the ultimate trier of the facts should determine whether the medical evidence presented to the court forms part of the "collective mind", and whether it complied with logical principles and reasoning prior to reaching a decision. General notes: <ul> <lo>1. Wikipedia and e-medicine was used as first search and easy reference and not for court purposes or proper reference;</lo> <lo>2. Note that the dissertation has a legal component and medical component and the references in the Bibliography is split under legal and medical references;</lo> <lo>3. Note all the chapter regarding the Michael-case reference to: epinephrine=adrenaline; nor-epinephrine=nor-adrenaline; propranolol=propanolol (American spelling versus the English spelling, both accepted in South Africa);</lo> <lo>4. The spelling of nomenclature like anaesthetist versus anesthetist, gynaecologist versus gynecologist; paediatrist versus pediatrist etc are used inconsistently as it is once again the American spelling versus the British spelling, which are accepted in South Africa.</lo> </ul> / Dissertation (LLM)--University of Pretoria, 2011. / Public Law / unrestricted

Department of Jurisprudence / LLM / The South African Constitution guarantees equal rights to everyone. The right to equality is specifically protected in Section 9 of the Constitution. Section 9(1) states that ‗everyone is equal before the law and has the right to equal protection and benefit of the law‘. However, ensuring equality of treatment between the victim of medical negligence and the health service provider has not enjoyed a satisfactory judicial approach. The causes of death or harm suffered by the patient poses a serious problem in the medico-legal investigation. The major focus of this proposed dissertation is the impact on the chain of causation from the victim‘s perspective because of medical negligence and the South African courts‘ approach in such matters. The courts do not seem to have satisfactorily applied the principles of novus actus interveniens in such cases. The proposed research hopes to expose unfair discrimination against the victim of medical negligence through its analysis of the courts‘ approach in medical negligence claims. The approach used by the courts will be critically analysed to determine whether the degree of legal or judicial protectionism in favour of the medical profession is adequate. In recent times, government health service providers have inundated government health departments with claims arising from medical negligence. Although this could seem beneficial from the victim‘s perspective as any relief obtained could be enforced on the assets of the relevant health department, the success level is relatively low as the concept of novus actus interveniens has continued to pose a great challenge to the victim in proving a claim against the medical personnel. This research sought to find out how the protection of victims of medical negligence could be enhanced in spite of the common law defence of novus actus interveniens available to the health service providers. / NRF