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.

No description available.

Magister Legum - LLM

Doctor Legum - LLD / Uganda, like many African countries in the 1990s, adopted decentralisation as a state reform measure after many years of civil strife and political conflicts, by transferring powers and functions to district councils. The decision to transfer powers and functions to district councils was, in the main, linked to the quest for democracy and development within the broader context of the nation state. This thesis' broader aim is to examine whether the legal and policy framework of decentralisation produces a system of governance that better serves the greater objectives of local democracy, local development and accommodation of ethnicity. Specifically, the thesis pursues one main aim: to examine whether indeed the existing legal framework ensures the smooth devolution process that is needed for decentralised governance to succeed. In so doing, the study seeks, overall, to offer lessons that are critically important not only for Uganda but any other developing nation that has adopted decentralisation as a state-restructuring strategy. The study uses a desk-top research method by reviewing Uganda's decentralisation legal and policy frameworks. In doing so, the thesis assesses decentralisation's ability to deepen democracy, its role in encouraging development and its ability to accommodate diversity. After reviewing the emerging soft law on decentralisation, the thesis, finds that Uganda's legal framework for decentralisation does not fully enable district councils to foster democracy, facilitate development and accommodate diversity. The thesis argues that the institutions that are created under a decentralised system should be purposefully linked to the overall objective of decentralisation. Giving a historical context of Uganda's decentralisation, the thesis notes that institutional accommodation of ethnic diversity in a decentralised system, particularly so in a multiethnic state, is a vital peace building measure. It is argued the exclusion of ethnicity in Uganda's decentralisation is premised on unjustified fear that ethnicity is potentially a volatile attribute for countries immerging from conflict. It maintains that the unilateral creation of many districts, the adoption of a winner-takes-all electoral system, the absence of special seats for ethnic minorities as well as the vaguely defined district powers and functions do not serve the overall objective of decentralisation. The thesis also finds that district councils are overregulated, with little respect for their autonomy, a phenomenon that is highly nostalgic of a highly centralised state. The thesis therefore calls for immediate reforms of Uganda's decentralisation programme.

Amidst our ableist social world, there are people with disabilities who are living the lives they want to be living and are, so-to-speak, “doing their own thing.” This project focuses on what a few young adult women attribute as having helped them get to where they are today. There were two overarching open-ended research questions guided this project: (1) what opportunities and experiences have influenced the four women with physical and mobility disabilities in terms of getting to where they are today? And (2) how have these opportunities and experiences helped and/or challenged them along their journeys? The study analyzes responses from semistructured interviews with four young women with physical disabilities. Participants’ responses suggest that growing up in supportive environments (family, friends, other people with disabilities) that foster a sense of disability pride helped participants adopt similar perspectives on disability. I argue that participants learned to understand disability as a valued form of social diversity in large part from their parents and from experiences that allowed them to interact with other young people with disabilities. Additionally, strategic positivity and persistence are two ways that help participants cope with the day-to-day ableism and anti-disability microaggressions that they experience.

Modern law of contract in South-Africa can be seen as a dynamic field of law. It encompasses key principles such as freedom of contract, autonomy, good faith and public policy. These principles are seen as important concepts that underlie the substantive law of contract. The Consumer Protection Act, introduced in 2008 and operational since 31 March 2011, has contributed to this dynamic field of law. Unfortunately the uncertainties regarding the application of widely articulated definitions associated with the act remain a concern. Many legal academics have tried to alleviate the possible difficulties posed by the application of the CPA by means of constructive criticism, in-depth analysis of practical aspects and submissions to the legislator during the past three years. The exceptio doligeneralis has offered similar protection for consumers in circumstances where it seemed as if no remedy would provide a similar equitable outcome. This defence was available when a plaintiff wanted to enforce legal action in circumstances that are unconscionable. The defendant could raise these circumstances as a defence to the action of enforcement. The potential difficulties associated with the CPA are not entirely similar to the uncertainties created by the application of the exceptio doli in the past. The widely articulated definitions present a bigger problem of uncertainty. This may in certain circumstances be to the detriment of the consumer. Consumers are afforded rights in terms of the CPA but it does not necessarily mean that the enforcement of these afforded rights is in place. There are technical difficulties regarding the interpretation of terms such as “agreement”, “unfair tactics” or “pressure” to name but a few. There are still no guidelines provided to assist consumer tribunals to adhere to the purpose of the act in a fair and organised manner. The question that arises is whether these afforded rights seem better than what it actually is; leaving us to believe that the common law regarding consumer protection can be codified. This study is an attempt to demonstrate that the CPA might not have the desired outcome as initially anticipated. The CPA unfortunately, in my opinion, represents an April fool’s day. Sections 40, 48 and 51 of the CPA will perhaps have a similar effect than the exceptio doligeneralis. These sections offer protection to a consumer if there are unfair, unreasonable or unjust circumstances. The widely articulated sections create an inclusive protecting mechanism rather than excluding. Any contract, term or clause thereof will be interpreted in such a way to benefit a consumer. It is submitted that it will not be possible to attach precise meanings to concepts such as good faith, public interest or fairness. There will always be a different understanding in a particular language and within a variation of context. The main goal to be achieved, the rules of the law of contract should reflect attempts to achieve a balance between fundamental principles such as fairness and good faith, and economic policies such as economic efficiency and the facilitation of honest market participation. / Dissertation (LLM)--University of Pretoria, 2013. / Mercantile Law / unrestricted

This project outlines the existence of neoliberal multiculturalism and identifies the implications and limitations of its practice. Neoliberal multiculturalism involves the institutionalization of group autonomy by the state to download responsibility to jurisdictions that have historically lacked sufficient fiscal capacity and have been hampered by colonialism in the development of the political capacity necessary to fully meet the requirements entailed by the devolution. At the same time, this practice releases the formerly responsible jurisdiction from the political burden of the policy area(s) despite its continued influence and effect. As demonstrated by my analysis of the Indigenous child welfare devolution that has occurred recently in Manitoba, neoliberal multiculturalism therefore involves a certain kind of “privatization”—that is, it involves the appearance of state distance from said policy area. This practice problematizes the traceability of power and decision making while at the same time it co-opts and in many ways neutralizes demands from critics of the state by giving the appearance of state concession to these demands. In response to the dangers of neoliberal multiculturalism, I situate multiculturalism in a robustly political model of democratic multi-nationalism (characterized by both agonism and deliberation) in order to combat multiculturalism’s tendency simply to rationalize “privatization” and to enhance democratic accountability. My approach goes beyond dominant constructions of group autonomy through group rights by emphasizing that autonomy is a relational political practice rather than a resource distributed by a benevolent state. Building on my analysis of Indigenous autonomy and the unique challenges that it presents for traditional democratic practices, I outline a contextually sensitive, case-specific employment of what I term “democratic multi-nationalism”. This approach conceives of Indigenous issues as inherently political in nature, as opposed to culturally defined and constituted, and therefore better meets the challenges of the colonial legacy and context of deep difference in which Indigenous-state relations take place today. / Arts, Faculty of / Political Science, Department of / Graduate

What is an emotion, and what does an emotional reaction signify? In this thesis I critically defend Aaron Ben-Ze’ev’s theory of emotion as a mode of social engagement. Building on the idea that an emotional reaction is the opposite of indifference, emotions express one’s concerns. They are most intense with regard to the shifting dynamics of personal relationships and social status. Thus, in order to think well about social and personal issues, attention to emotional views of the world is paramount. The social concern of emotion opens what may seem private about our reactions to an interpersonal reading. Emotions are contrasted with an intellectual form of engagement, the latter being characterized by deliberative thinking, which focuses on generalities and stable patterns. Emotions, on the other hand, are more closely aligned with action tendencies and tend to disrupt detached styles of thinking by narrowing one’s focus to the emotion’s target. Because emotions express one’s concerns, Ben-Ze’ev argues that they tend to sincerely express our “profound values,” a view which I argue against. Building on Diane Meyers’s conception of the five-dimensional self, I argue that emotions are a source of deeply held convictions, but avoid conflating this with notions of sincerity. Instead, emotional concerns can be integrated into the cultivation of personal autonomy, in terms of self-definition and self-discovery. I apply this conception of emotion to the popular concept of emotional intelligence, and argue that emotional intelligence involves a capacity to handle with skill the emerging and chaotic urgency of emotional reactions.

Cette recherche vise à éclairer le processus d'autonomisation des adolescents, mis en jeu à travers leurs usages des réseaux sociaux. Regroupés entre pairs sur des espaces de communication où ils jouissent d'une liberté d'action, ceux-ci expérimentent des situations variées soutenant leur besoin de se forger une autonomie personnelle, affective, relationnelle, sociale et cognitive. A travers deux enquêtes, une observation des réseaux sociaux et un questionnaire, nous avons analysé la façon dont ces différentes dimensions de l'autonomie sont mobilisées dans les pratiques juvéniles en explorant plus particulièrement le choix des outils, les types d'activités, les formes de contenus et les interactions humaines. / The aim of this research is to clarify the process in which adolescents through their use of social networks, become autonomous. Grouped in peers in communication settings where they enjoy freedom of action, they experiment with various situations supporting their need to forge a personal autonomy on emotional, relational, social and cognitive levels. Through two surveys, an observation of social networks and a questionnaire, we analysed how these different dimensions of autonomy are mobilised in the juvenile practices by investigating more particularly the choice of tools, the types of activities, the forms of content and the human interactions.

This thesis sets out to investigate the field of public service interpreting in southern Spain, with a particular emphasis on the position of volunteer interpreters working at two different healthcare institutions. It looks at the power relationships that develop between agents that hold different degrees of control and autonomy, especially in a context where individuals hold different forms and volume of capital in each encounter. Drawing on Bourdieu’s Theory of Practice, the study offers an in-depth examination of a group of volunteer interpreters as legitimate agents of the wider field of public service interpreting and the sub-field of healthcare interpreting, while looking at their impact on the structures and ethics of the larger field. This is the first project to employ Bourdieu’s theory in a sustained case study of a healthcare context where volunteer interpreters operate as legitimised institutional agents. One of the peculiarities of the two settings under examination is that volunteer interpreters seem to have acquired a high degree of institutionalisation, which provides them with a large volume of symbolic capital and allows them to take part in the field as legitimate members of the healthcare team, often occupying similar positions to those adopted by doctors at the top end of the field hierarchy. The study adopts an ethnographic approach based on a triangulation of data: participant observation of volunteer interpreters, audio-recorded interpreter-mediated interaction and focus-group interviews with volunteer interpreters. The primary data that informs the thesis consists of four focus groups carried out with volunteer interpreters in two different Spanish hospitals. The additional use of participant observations and audio-recordings make it possible to examine not only interpreters’ perceptions but also actual behaviour in authentic encounters, and to compare interpreters’ perception of their positioning with the actual positions they often occupy in the field.