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.

In many cases the breach of contract may give rise to delictual liability since the damaging behaviour can be construed as unlawful, especially when an infringement occurs of the other party’s rights in rem or physical injuries are caused to the contract partner as a result of such a breach of the contractual rules. On the other hand, there is no place for delictual liability if the damage results from a breach of a contractual obligation which is part of the consideration. Examples of the relationship and concurrence of delictual (tort) and contractual liability for the breach of contract, legal aspects of interference problem, peculiarities of tort law and contract law, their specific regimes and the areas of possible overlap are analyzed in this work. The issue under consideration is whether a plaintiff who has a contract with the defendant and who can also establish a tort relationship with the defendant may have a choice of remedies in order to gain some advantages with respect to a burden of proof, degree of fault, availability of exceptions, or length of the respective periods of limitation.

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

“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]

The applied practice of duty of care of the educator in historically Afrikaans medium secondary schools in the districts of Potchefstroom and Klerksdorp. When a parent sends his child to school the learner is entrusted to the care of educators, and the educator acts as a person in loco parentis regarding the physical protection of the learner. In order to ensure this safety of learners, it is necessary to create a climate of safety and security for them by utilizing rules and regulations. This implies that the educator, in the application of the practice of duty of care, is obliged to protect the learner from physical damage. The compulsion laid upon the educator to ensure the physical welfare of learners entrusted to his care, results from a delegated obligation (the in loco parent/s-position of the educator) and an original obligation. It is important for the educator to evaluate, comprehend and apply his position and the accompanying standard of the practice of duty of care legally required in the light of relevant legislation, legal adage and common law principles. Literature study has shown that the obligations and responsibilities regarding the duty of care of educators are established by a combination of determinants, inter alia statutory legislation, South African and International legal adage and elements of common law. There is no separate field of laws to exclusively determine and influence education but rather an eclectic field of legislation comprising norms and standards from the entire field of legislation as applicable in contemporary South Africa. With the accent currently on the professional conduct of the educator, they should keep in mind that they, like any other professional person, will be evaluated by stricter measures. In establishing negligence from an educator, the skills and care are expected from the educator as a professional person, an expert in the field of teaching with specialised knowledge. Thus, the conduct of an educator is measured by the elevated standards as expected from the reasonable expert. An empirical investigation was launched by means of a questionnaire completed by post level -1 educators and heads of department in historically Afrikaans secondary schools in the Potchefstroom and Klerksdorp districts. The aim of this research was to establish • the insight, perceptions and knowledge of the educators regarding key legal questions with reference to their care of duty practice and • the extent to which the duty of care practices of the educators meet with the requirements of educational law. The empirical investigation established inter alia that • respondents generally seem to possess reasonable knowledge of education laws regarding the practice of their duty of care; • most of the respondents seem not to be able to apply their knowledge of educational laws to their duty of care; • it seems that the practice of duty of care of the majority of the respondents does not meet with the elevated standards expected legally from a professional educator and that • specialised training in education law has the most significant effect on the practice of duty of care of the educator. With regard to the findings, specific recommendations were made, relevant to role players in education on macro, meso and micro level. These recommendations should promote a heightened standard in the practice of care of duty with practicing educators. / Thesis (M.Ed.)--North-West University, Potchefstroom Campus, 2009.

The applied practice of duty of care of the educator in historically Afrikaans medium secondary schools in the districts of Potchefstroom and Klerksdorp. When a parent sends his child to school the learner is entrusted to the care of educators, and the educator acts as a person in loco parentis regarding the physical protection of the learner. In order to ensure this safety of learners, it is necessary to create a climate of safety and security for them by utilizing rules and regulations. This implies that the educator, in the application of the practice of duty of care, is obliged to protect the learner from physical damage. The compulsion laid upon the educator to ensure the physical welfare of learners entrusted to his care, results from a delegated obligation (the in loco parent/s-position of the educator) and an original obligation. It is important for the educator to evaluate, comprehend and apply his position and the accompanying standard of the practice of duty of care legally required in the light of relevant legislation, legal adage and common law principles. Literature study has shown that the obligations and responsibilities regarding the duty of care of educators are established by a combination of determinants, inter alia statutory legislation, South African and International legal adage and elements of common law. There is no separate field of laws to exclusively determine and influence education but rather an eclectic field of legislation comprising norms and standards from the entire field of legislation as applicable in contemporary South Africa. With the accent currently on the professional conduct of the educator, they should keep in mind that they, like any other professional person, will be evaluated by stricter measures. In establishing negligence from an educator, the skills and care are expected from the educator as a professional person, an expert in the field of teaching with specialised knowledge. Thus, the conduct of an educator is measured by the elevated standards as expected from the reasonable expert. An empirical investigation was launched by means of a questionnaire completed by post level -1 educators and heads of department in historically Afrikaans secondary schools in the Potchefstroom and Klerksdorp districts. The aim of this research was to establish • the insight, perceptions and knowledge of the educators regarding key legal questions with reference to their care of duty practice and • the extent to which the duty of care practices of the educators meet with the requirements of educational law. The empirical investigation established inter alia that • respondents generally seem to possess reasonable knowledge of education laws regarding the practice of their duty of care; • most of the respondents seem not to be able to apply their knowledge of educational laws to their duty of care; • it seems that the practice of duty of care of the majority of the respondents does not meet with the elevated standards expected legally from a professional educator and that • specialised training in education law has the most significant effect on the practice of duty of care of the educator. With regard to the findings, specific recommendations were made, relevant to role players in education on macro, meso and micro level. These recommendations should promote a heightened standard in the practice of care of duty with practicing educators. / Thesis (M.Ed.)--North-West University, Potchefstroom Campus, 2009.

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...