Thesis (LLM. (Development and Management) -- University of Limpopo, 2005

Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, creates a new causation doctrine in Canadian negligence law that is available to plaintiffs only in exceptional cases. Under this doctrine, negligence and the possibility of specific factual causation may be sufficient to satisfy the causation requirements of a cause of action in negligence. Proof of specific factual causation on the balance of probability is not required. The justification for this doctrine is fairness and justice. The application of the doctrine does not produce a decision that the negligence did cause the injury. Where the requirements of the Resurfice doctrine are satisfied, the causation requirements of the cause of action are deemed to be satisfied despite the finding that factual causation was not established on the balance of probability. The authorities cited are current to June 21, 2012.

Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, creates a new causation doctrine in Canadian negligence law that is available to plaintiffs only in exceptional cases. Under this doctrine, negligence and the possibility of specific factual causation may be sufficient to satisfy the causation requirements of a cause of action in negligence. Proof of specific factual causation on the balance of probability is not required. The justification for this doctrine is fairness and justice. The application of the doctrine does not produce a decision that the negligence did cause the injury. Where the requirements of the Resurfice doctrine are satisfied, the causation requirements of the cause of action are deemed to be satisfied despite the finding that factual causation was not established on the balance of probability. The authorities cited are current to June 21, 2012.

Thesis (Ph.D.)--Murdoch University, 2002. / Thesis submitted to the Division of Business, Information Technology and Law. Bibliography: p. 441-449.

This thesis is an investigation of the law of damages for misrepresentation at common law and under the Misrepresentation Act, 1967. It makes three principal claims. First, the relationship that must exist between the making of a false statement and the claimant's reliance on it is one of necessity. In applying this test to individual cases, there is no rule of law that the non-breach position is always that the defendant would have said nothing or that he would have disclosed the truth: it simply depends on what a reasonable defendant would in fact have done. Secondly, the scope of liability for negligent misrepresentation is governed by what this thesis describes as the 'falsity rule'. This is the rule that a loss must be a consequence not only of the making of a false statement but also of its falsity. The rule can be traced to the late nineteenth century and is the best explanation of the SAAMCO case. Contrary to the current orthodoxy, SAAMCO does not in fact endorse the risk theory of remoteness which, in any event, is flawed both as a description of the law and as a matter of principle. Thirdly, the measure of damages under section 2(1) of the 1967 Act is the deceit measure and the measure under section 2(2) is the monetary equivalent of rescission. These provisions have given rise to difficulty principally because their legislative history has not been closely analysed. In truth, Parliament enacted section 2(1) in the mistaken belief that the common law distinguishes between deceit and negligence only for the purpose of actionability, not damages, but a mistake of this kind is conceptually distinct from a mistake about the conventional meaning of words or syntax. For these reasons, it is argued that Royscot is correctly decided but that William Sindall, with respect, is not.

It has been suggested by some commentators that the ‘real’ damage (as opposed to that pleaded) in the cases of Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and Chester v Afshar [2005] 1 AC 134 was the claimant’s lost autonomy. Arguments have consequently been put forward that lost autonomy either already is or should be recognised as a new form of actionable damage in medical negligence cases. Given the value placed on respecting patient autonomy in medical law and bioethics, it might be thought that such a development should be welcomed. But if lost autonomy is accepted as a new form of damage in negligence, it will not be confined to the two scenarios that were present in those cases and it may be inconsistent with other established negligence principles. This thesis considers whether lost autonomy ought to be recognised as a new form of damage in negligence and concludes that it should not. A close textual analysis of Rees and Chester is undertaken in order to determine whether a ‘lost autonomy’ analysis actually provides the best explanation of those two cases. I then look at how the concepts of autonomy and harm should be understood to determine whether, ethically speaking, to interfere with someone’s autonomy is to cause them harm. The final part of the thesis considers important doctrinal tort law considerations that have been overlooked in the medical law literature. I argue that the nature of autonomy means that it cannot coherently be considered actionable damage within the tort of negligence and that recognising a duty of care to avoid interfering with people’s autonomy would be inconsistent with the restrictive approach the courts take to recovery for psychiatric injury and economic loss. My ultimate conclusion is that the benefits of allowing such claims do not outweigh the undermining of established principles that would ensue if lost autonomy were recognised as a form of actionable damage in negligence.

This research builds on and contributes to work in the field of educators' professional discretion and the prevention of negligence. Existing literature suggests that many educators are still unaware of how the law operates regarding policy requirements and their in loco parentis obligations. This is demonstrated by the number of litigations and how an educator's liability regarding negligence has grown. In South Africa, numerous authors have made contributions in relation to learner safety and educators' duty of care. An educator is tasked with duty of care and to use professional discretion appropriately. At the same time, educators should be mindful to minimise their exposure to lawsuits. However, not much appears to have been done in this country to establish how educators can maintain a respectable balance between professional discretion and policy requirements without being negligent. The purpose of this study was, thus primarily to explore ways in which educators can reconcile professional discretion and legal and policy requirements to prevent negligence. The study utilised a qualitative research approach underpinned by an interpretive paradigm. Data collection was done by the means of qualitative collection techniques, namely semi-structured interviews supported by an analysis of relevant court cases. Twenty participants from two primary and two secondary public schools in the Tshwane South school district in Gauteng participated in the study. Two of these schools were fee-paying schools and two non-fee-paying schools. Five participants from each school were identified and invited to participate in this study and consisted of the principal, a member of the school management team (deputy-principal or head of department) and three educators. Each of the participants had different legal obligations, discretions, responsibilities and accountabilities as far as negligence is concerned. The conceptual framework for this study, was based on Dworkin’s (1978:31) ‘doughnut’ metaphor for the concept of professional discretion. Based on an adapted version of Dworkin’s ‘doughnut’ metaphor, findings confirm that some educators feel restricted in their decision-making and limited in their professional discretion due to the legal and inflexible policy framework regulating their work. It came to the fore that the understanding and interpretation of certain school policies were dealt with differently by the participants due to their varied levels of experience, knowledge and training. The findings illuminated the fact that the participants did not fully grasp the vii concept of professional discretion. In making decisions and exercising judgement, these participants may not be comfortable in their knowledge experience or personal intuition. Educators’ capacity and ability to apply discretion is influenced by a number of external and internal factors. These factors restrict an educators’ autonomy space, which could ultimately lead to the inability to apply appropriate discretion. This could lead to a form of paralysis to uphold a high standard of care in dire situations and could lead to negligence. Therefore, in order to achieve a high standard of care and not be negligent, educators should not only have the ability to apply appropriate discretion, but also have the freedom to do so. Key terms: professional discretion; duty of care; in loco parentis; negligence; law of delict; standard of care; school safety policies. / Dissertation (MEd)--University of Pretoria, 2020. / DST-NRF Innovation Master’s Scholarship. UNIQUE GRANT NO: 117504 / Education Management and Policy Studies / MEd / Unrestricted

Blundered by the Borrower attempts to illustrate the potential loneliness and anxiety that is experienced by the individual, amidst the contemporary and panicked social climate, domestically and globally--using the mediated jetsam of everyday life, violent entertainment and the disarming characteristics of cartoons to better understand and possibly illuminate a chronic lack of empathy in American society and popular culture.

This dissertation discussed the impact of the North Carolina Tort Claims Act and the history of governmental immunity that has protected school districts and school employees in North Carolina. The research question addressed was: how have North Carolina state courts interpreted the North Carolina Tort Claims Act in litigation against North Carolina school districts and their employees? The North Carolina Tort Claims Act provided citizens with a vehicle to sue local governmental agencies and their employees, such as school employees. The act also provided immunity for schools, especially for excessive damages in the case of negligence by an employee. The study examined how state courts have responded to different plaintiffs since the passage of the North Carolina Tort Claims Act in 1951. The decisions in the cases analyzed have been mostly favorable to schools, which has strengthened immunity for school employees. There were four legal aspects addressed by the courts after the passage of the North Carolina Tort Claims Act either most frequently or were unique to the case law of North Carolina. Those legal aspects were tests of school districts' governmental immunity; contributory negligence on the part of the plaintiff; the official capacity of school employees in lawsuits; and the scope of the Industrial Commission in North Carolina to hear lawsuits. The case law analysis in this study explained the background of those legal aspects, and when school leaders and teachers were vulnerable to lawsuits due to negligence.

The doctrine of sovereign immunity in the Commonwealth of Virginia has evolved over time and the redefinition of the doctrine has been subjected to the interpretation by courts involving cases with varied facts and circumstances that have challenged the boundaries and flexibility of this legal concept. Determining the protection that a state agent was entitled to was the guiding principle in case law regarding sovereign immunity; however, understanding the purpose and intent of the doctrine of sovereign immunity was critical to determining the boundaries and criteria of the doctrine of immunity. In this dissertation, the researcher analyzed tort law as it applied to educators and public-school districts through the Virginia court system under common law and the Virginia Tort Claims Act (VTCA, 1981). The case analysis provided an overview of lawsuits heard and decisions rendered in negligence cases brought against educators and educational entities prior to and after the enactment of the Virginia Tort Claims Act in 1981.