Over the past decade, concerns with the accessibility and quality of health services have led several individuals to bring tort claims against provincial governments. Unlike other types of health sector legal claims, which have been the subject of much commentary, this thesis provides the first treatment of the tort cases against governmental defendants. To date, Canadian courts have not been receptive to these claims, striking nearly all of them on pre-trial motions, on the basis that government defendants did not owe the plaintiffs a duty of care. In order to situate the health sector tort claims within the judiciary’s broader approach to governmental liability, I compiled a dataset of all tort cases against Canadian governmental defendants from the past decade. My dataset indicates that judges have dismissed more health sector tort claims than those arising from nearly all other sectors of government activity, even accounting for other explanatory variables. I also develop a framework to categorize the judicial approaches to the test for establishing a duty of care. Canadian judges now generally conduct a comprehensive analysis of the closeness and directness of the parties’ relationship and the policy implications of tort liability in determining whether a defendant owes a plaintiff a duty of care. However, judges adjudicating health sector claims fail to appreciate the government’s modern role in the health sector and are almost singularly concerned with the policy implications of their decisions. I conclude with two policy recommendations. First, I argue that judges should more frequently permit these claims to proceed beyond the pre-trial dismissal stage to a full trial, in order to evaluate the policy concerns both for and against governmental liability with the benefit of a full evidentiary record. Second, I argue that judges should more frequently permit health sector tort claims to proceed beyond the duty of care stage of the negligence analysis to an assessment of whether the government met the standard of care. While this approach would allow judges to scrutinize the reasonableness of the government’s decisions, improving transparency and potentially motivating an improved decision-making process, it would not necessarily lead to widespread liability.

Over the past decade, concerns with the accessibility and quality of health services have led several individuals to bring tort claims against provincial governments. Unlike other types of health sector legal claims, which have been the subject of much commentary, this thesis provides the first treatment of the tort cases against governmental defendants. To date, Canadian courts have not been receptive to these claims, striking nearly all of them on pre-trial motions, on the basis that government defendants did not owe the plaintiffs a duty of care. In order to situate the health sector tort claims within the judiciary’s broader approach to governmental liability, I compiled a dataset of all tort cases against Canadian governmental defendants from the past decade. My dataset indicates that judges have dismissed more health sector tort claims than those arising from nearly all other sectors of government activity, even accounting for other explanatory variables. I also develop a framework to categorize the judicial approaches to the test for establishing a duty of care. Canadian judges now generally conduct a comprehensive analysis of the closeness and directness of the parties’ relationship and the policy implications of tort liability in determining whether a defendant owes a plaintiff a duty of care. However, judges adjudicating health sector claims fail to appreciate the government’s modern role in the health sector and are almost singularly concerned with the policy implications of their decisions. I conclude with two policy recommendations. First, I argue that judges should more frequently permit these claims to proceed beyond the pre-trial dismissal stage to a full trial, in order to evaluate the policy concerns both for and against governmental liability with the benefit of a full evidentiary record. Second, I argue that judges should more frequently permit health sector tort claims to proceed beyond the duty of care stage of the negligence analysis to an assessment of whether the government met the standard of care. While this approach would allow judges to scrutinize the reasonableness of the government’s decisions, improving transparency and potentially motivating an improved decision-making process, it would not necessarily lead to widespread liability.

The legal regulation of the environment is exemplary of the formation, practice and challenge of modern legal discourse and governance. The latter part of the twentieth century has seen the emergence of environmentalism and the problematisation of the environment in terms of the management of hazard and risk. The social authority of law has meant that it has been inevitably implicated in the contestation and negotiation of environmental governance. In turn, environmental governance and discourse have required a certain refiguring of legal rationality as legal discourse has been confronted by the immanent critique of environmentalism. This thesis will focus on how the environment emerged as problematic and how it came to be governed and of legal interest. Several examples of legal thinking concerning specific environmental problems are analysed, and the manner in which the environment is constructed within the legal discursive domain is examined. Much modern knowledge and understanding regarding the environment developed in part from the specialisation of scientific discourse and experiment, which formed certain areas of expertise, including biology, ecology and toxicology. This scientific knowledge significantly contributed to governmental identification and elucidation of the environment. Modern ecology and associated technologies have facilitated the detailed mapping and auditing of physical environments, and have profoundly effected our modern appreciation of ‘the environment’ as an interdependent, dynamic and potentially fragile web of interdependent physical zones, spaces and activities. Modern environmentalism has emerged through the application of this type of technical scientific knowledge, in combination with certain forms of ‘environmental sensibility’ which treat the environment, not as a thing, or somehow ‘out there’, but as a dynamic process of which humans are a part, which has a history, an economy, and a power to transform and be transformed. The shape of modern environmental governance has been especially influenced by the scientific and ethical critique of environmentalism that connects the origin of ecological risks to technological application and commodity production. Throughout this thesis, specific aspects of the ‘analytics of government’ or governmentality approach derived from Foucault’s writing on governmentality are taken up. Governmentality theory is largely concerned with the contingent relationship between knowledge and power; thus, with analysing specific discourses and associated spaces within which differing knowledge and forms of thinking interrelate and resist each other. The contestation and negotiation associated with environmental governance has confronted legal discourse and led to a refiguring of legal rationality. Legal governance of the environment has stretched and unsettled legal orthodoxy, as the environment does not readily fit into any of the usual categories pertaining to legal rights and interests. The environment, as a legal subject, is not simply a physical space; it is a contingent and instrumental concept, determined by human activity, social values and legal and non-legal calculation.

Thesis (doctoral)--Göttingen Universität, 2007. / Includes bibliographical references and index.

Thesis (Ph. D.)--Florida State University, 2005. / Advisor: Dr. Annie Clement, Florida State University, College of Education, Dept. of Sport Management, Recreation Management, and Physical Education. Title and description from dissertation home page (viewed June 13, 2005). Document formatted into pages; contains xi, 128 pages. Includes bibliographical references.

Thesis--University of Florida. / Description based on print version record. Typescript. Vita. Includes bibliographical references (leaves 133-137).

Thesis (Ph. D.)--Illinois State University, 1969. / Title from title page screen, viewed Aug. 24, 2004. Dissertation Committee: Benjamin C. Hubbard (chair), Alan Hickrod, Alic Ebel. Includes bibliographical references (leaves 124-132) and abstract. Also available in print.

Thesis--Auburn University, 2009. / Abstract. Vita. Includes bibliographical references (p. 61-63).

No description available.

No presente estudo buscar-se-á investigar a corresponsabilidade do lesado na responsabilidade civil, inserido no direito brasileiro no artigo 945 do Código Civil. Assim, inicialmente, tratar-se-á da conexão do tema com o dano fortuito e o dano causado a si mesmo para, em sequência abordar a corresponsabilidade do lesado com enfoque sobre a função preventiva da responsabilidade civil ao incentivar não somente o lesante a não reincidir em atos ilícitos, mas também a vítima. A corresponsabilidade do lesado será apresentada como exceção ao princípio da reparação integral do dano. A seguir, passa-se a tratar da corresponsabilidade da vítima e os estudos a respeito do nexo de causalidade e a análise das teorias da causalidade. Merece também exame a aplicação nos casos de corresponsabilidade do lesado e sua incidência quando da responsabilidade objetiva. Será demonstrada uma análise da recepção da corresponsabilidade do lesado nas legislações estrangeiras com enfoque especial ao sistema da commow law com a contributory negligence e sua migração para o comparative negligence. Em capítulos específicos são abordados estudos a respeito do dever de colaborar com a mitigação do próprio prejuízo (duty to mitigate the loss) e também a interlocução com o artigo 935 do Código Civil. Outro centro do presente estudo é a proporção na redução equitativa do dano quando identificada a concausalidade da vítima pelo magistrado e a contribuição da disciplina de direito e economia para o tema. / The present study will seek to investigate comparative negligence in tort law inserted in Brazilian law in the article 945 of the Civil Code. So initially it will treat the theme of connection with the accidental damage and damage to yourself to sequentially treat the comparative negligence focusing on the preventive function of liability to encourage not only the perpetrator not reoccur in unlawful acts and also presents it as an exception to the principle of full compensation for the damage. Following going to deal with the comparative negligence and the studies of the causation and the analysis of causality theories. Also worth examining the application of the victim responsibility cases and its impact when it focuses strict liability. It will be shown an analysis of the injured responsibility reception in foreign legislation being given special attention to the commow law system with contributory negligence and their migration to the comparative negligence. In specific chapters are covered studies on the duty to mitigate the loss and also interlocution with Article 935 of the Civil Code. Another center of the study is the proportion equitable harm reduction when concausalidade identified the victim by the magistrate and the contribution of the discipline of Law and Economics at the subject.