How would you feel if after having spent many years incarcerated for a crime that you did not commit and when finally you are released to a broken life where there is nobody to respond effectively to all the damages that you have and that you will continue to endure due to an unfortunate miscarriage of justice? In Canada, compensation for wrongful convictions is a legal issue which has yet to find a solution for those who the government has denied to pay compensation for and the damages such wrongful conviction brought to their lives. This thesis will analyze the legal problem of compensation for wrongful convictions in Canada from a tort law perspective and will present an alternative to the existing regime to serve justice to those who have been victims of miscarriages of justice.

How would you feel if after having spent many years incarcerated for a crime that you did not commit and when finally you are released to a broken life where there is nobody to respond effectively to all the damages that you have and that you will continue to endure due to an unfortunate miscarriage of justice? In Canada, compensation for wrongful convictions is a legal issue which has yet to find a solution for those who the government has denied to pay compensation for and the damages such wrongful conviction brought to their lives. This thesis will analyze the legal problem of compensation for wrongful convictions in Canada from a tort law perspective and will present an alternative to the existing regime to serve justice to those who have been victims of miscarriages of justice.

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Made available in DSpace on 2016-04-26T20:20:37Z (GMT). No. of bitstreams: 1 Diogo L Machado de Melo.pdf: 1012467 bytes, checksum: a8948ef69a5fbe62e30c5e237138153b (MD5) Previous issue date: 2011-11-18 / This work aims to show the divergences between the criteria used by jurists to interpret the fault within the scope of extracontractual liability, and to suggest an adequate model, coherent with the civil-constitutional principles involving the study of private law, especially the application of damage law. In order to do so, departing from the evidence and proof of fault permanence as an element that characterizes fault liability and its coherence with the current stage of civil law studies, criteria and models now used by jurists to interpret it will be presented. After listing problems involving currents currently followed especially the subjective theory and the insufficiency of the objective theory under the light of premises currently fixed, civil-constitutional model to orient the interpretation of this important element will be presented as well as how it behaves within the empirical dynamics by using ethical standards, principles like the dignity of the individual (CF, art. 1st, III), social solidarity (CF, art. 3rd, I) and objective good faith, which exert a direct influence over inter-private relationships / O presente trabalho tem como objetivo apresentar as divergências entre os critérios utilizados pela doutrina para interpretação da culpa no âmbito da responsabilidade extracontratual e, dentro desse contexto, sugerir um modelo adequado aos princípios civil-constitucionais que envolvem o estudo do direito privado, especialmente a aplicação do direito de danos. Para tanto, partindo-se da constatação e comprovação da permanência da culpa como elemento caracterizador da responsabilidade subjetiva e sua coerência com o atual estágio dos estudos do direito civil, serão apresentados os critérios e modelos até então utilizados pela doutrina para sua interpretação. Elencados os problemas envolvendo as correntes até então utilizadas especialmente a teoria subjetiva e a insuficiência da teoria objetiva à luz das premissas até então fixadas, será apresentado um modelo civil-constitucional orientador da interpretação desse importante elemento e como ele se comporta na dinâmica empírica , valendo-se de padrões éticos, de princípios como a dignidade da pessoa humana (CF, art. 1º, III), a solidariedade social (CF, art. 3º, I) e a boa-fé objetiva, que exercem influência direta nas relações interprivadas

本文將負面醫療結果(醫療傷害)統稱為醫療事故(medical incident)，而醫療事故中又分為醫療過失(medical negligence)、醫療不幸（medical mishap，又名醫療災禍）及醫療意外(medical accident)三種情況。造成醫療傷害可能是因為醫療的過失責任，也可能是無醫療過失責任，本文特意將無醫療過失責任再細分為無過失責任、非過失責任與無法律責任（自然死亡或自然病程）三種，並將「無過失責任」no fault liability一詞泛以「無關過失責任」稱之；醫療行為中可預知的合併症與副作用的「醫療不幸」及不可預知、不可抗力的「醫療意外」屬非過失責任範疇，而不可避免性的自然死亡及自然病程，則屬無法律責任的範疇。 責任負擔可分為賠償、補償、救濟三種。賠償者，以不法之侵權行為，致使他人受損害時，因而填補其所受之損害，謂之賠償，英文為indemnity。補償者，指根據該法所指定的人員敲定的額度提供的金錢補助，而不是指針對不法行為或違反契約依法起訴所獲得的補償性賠償金，英文為compensation。救濟者，特別指由國家向貧困者提供的財政幫助，英文為relief。 過失責任的歸責原因是醫療疏失，所以是以損害填補原則及不當得利禁止原則，以填補受害者所受損害及所失利益；因此，過失責任要負的是損害「賠償責任」。非過失責任的歸責原因包括醫療不幸（即副作用、合併症）與醫療意外兩種，因為醫師客觀上已盡注意義務，不論有無結果預知義務或結果迴避義務，醫師已盡力防阻，仍不免發生醫療傷害，故並無醫療疏失可言，應由國家社會對受害者予以救濟；因此，非過失責任理應由福利國家的救濟制度來負責。無關過失責任no fault liability的歸責原因是危險責任，針對所有醫療事故，不論對錯無關過失下，只要有了醫療傷害，加害人就予以被害人限額補償的基本保障。因為醫師身為危險責任主體，依報償責任理論（利之所存，險之所擔）、危險控制理論及危險分擔理論下必須承擔危險責任，因以，無關過失責任應負醫療事故補償責任。 賠償、補償、救濟三種責任負擔都可以分別採用基金模式或保險模式來解決；本文則認為，醫療過失責任宜採取醫師專業責任保險，予受害人損害賠償。醫療無關過失責任宜採取醫事人員強制責任保險，輔以醫療事故特別補償基金，予受害人基本保障補償。醫療非過失責任宜採取醫療風險救濟基金，予受害人風險救濟，急難救助。 故本文結論提出事故補償、風險救濟、損害賠償三階層的保險與基金制度架構，以解決醫療糾紛民事責任問題即；第一層事故補償—針對醫療事故，以醫事人員強制責任保險無關過失，限額補償；第二層風險救濟—針對醫療意外，整合醫療風險救濟基金定額救濟；第三層損害賠償—針對過失責任，以醫師責任保險損害填補。 / In this paper, we study negative outcomes associated with the delivery health care, which are collectively referred to as “medical incident”. This is further divided into “medical negligence”, “medical mishap” (also known as “medical disaster”), and “medical accidents”. Medical injuries may be in consequence of medical negligence or otherwise, that is they may be with fault or without fault. In this paper we further medical injuries without fault into three categories: (1) liability regardless of fault, (2) liability without fault, and (3) no legal liability. Notably, we refer to “no-fault liability” as “liability regardless of fault” to better distinguish its legal implications with respect to other kinds of medical injuries without fault. Predictable complications and side effects of medical treatments are considered “medical mishap”; unavoidable natural death or nature course of disease have “no legal liability”. The burden of duty can be divided into three categories: indemnity, compensation, and relief. Indemnity is secondary to the violation of rights leading to injury and damages. Compensation is set by appointed experts and given in direct consequence of the occurrence of the injury, and is independently of the determination of legality and contract fulfillment. Relief specifically refers to financial assistance given by government entities to those in need. At-fault liability follows medical negligence, and as such indemnity is given for reparation of damages and the prohibition of gains from the provision of negligent medical care. Causes of liability with no fault include medical mishaps and medical accidents. In these cases, the physician has fulfilled duties as medical professionals and in so doing have done their best to prevent medical incidents. Nevertheless due to circumstances beyond control, medical injuries occur. Because there is no negligence on the part of the physician, these losses are ideally dealt with by the governmental agencies. Liability regardless of fault attributes liability based on risk alone. Under this system, for all medical incidents, whether or not they are the consequence of negligence, the victim receives relief at a pre-determined amount. This relief serves as the basic protection of patients. Since the physician as the chief medical care provider is also at the center of medical risk, by principles of risk management, liability regardless of fault should in addition be organized as medical incidents compensation. The three forms of duty burden–indemnity, compensation, and relief–can be organized either as foundations or as insurances. We argue that duty burden for medical negligence is best managed by professional liability insurance to provide compensation to the victims. Medical liability regardless of fault is best managed by compulsory medical provider liability insurance with additional medical incidence compensation fund to provide at least a basic level of compensation to the victims. Medical liability without fault is best managed by medical risk relief fund for assistance for the victims. In conclusion, in this paper we analyze various forms of liability and management of medical risks, and propose the use of professional liability insurance for medical injuries with fault, compulsory liability insurance for liability without fault, and relief fund for liability regardless of fault, in the setting of medical incidence. This provides a comprehensive, three-layered solution to the emerging problem of proliferation of medical incident cases in the courts. The first layer is incidence compensation, directed at all medical incidents, via compulsory medical personnel liability insurance regardless of fault. The second layer is risk relief, directed at medical mishaps and medical accidents, via risk relief funds. The third layer is damage indemnity, directed at at-fault liability, via physician professional liability insurance, to fulfill the victims’ damages.