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In professional negligence the most challenging and arduous is medical negligence, which consists of various claims. Medical negligence will usually involve doctors and other medical practitioners. In medical negligence the claimant is allowed to bring a personal injury claim to a court which has the jurisdiction under adversarial system. However it is evident from reported cases that medical negligence claims were mostly unsuccessful. The reason lies on the notion of the burden of proof, which cast a heavy burden on the plaintiff according to the fault system. In medical negligence claims, plaintiffs will more often than not, find it very difficult to discharge their burden of proof. In most countries, professional negligence claims are recommended to be dealt with by way of mediation under Alternative Dispute resolution (ADR). Mediation is believed to be easier than litigation and is less complicated. Malaysia is among those countries which has enhanced significantly the utility of ADR. This paper will endeavour to address the problems in proving medical negligence cases by using one of the strongest tools of ADR which is mediation.

The purpose of this study is to discover the philosophy of accountability in environmental disputes and discover the legal rationality of the validity of the Res Ipsa Loquitur doctrine in resolving environmental disputes in Indonesia. The results of the study show that 1) The philosophy of accountability in environmental disputes is the human right because of the existence of human beings as conscientious, intelligent, conscious and free beings who use their conscience, reason, awareness and freedom (ontologism) where their fulfillment is based on moral legislation (epistemological) to bring about justice, legal certainty and expediency (axiological) and 2) The rationality of the legality of the doctrine of res ipsa loquitur is in the environmental dispute is first, the difficulty of proving mistakes (intentional or negligence) in environmental disputes; Second, reversing the burden of proof still requires proof of innocence and causality between loss and mistakes; The three absolute responsibilities still require proof from the defendant regarding the loss caused; Fourth, the allegation evidence still requires the support of other evidence, so that a mechanism for resolving environmental disputes in favor of the environment (novio pro natura) is needed without proof of the mistakes, losses and causality of both but sufficient with the fact of environmental damage that is located in the power of the defendant so the allegation that arises is presumption by factuality with a form of responsibility to compensate absolutely (absolutely compentation liability).

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The law as to the legal liability for medical negligence is evolving in its own individual way in Fiji, drawing upon English and Australian authorities. As yet claims have not been made in the courts by reference to the important constitutional “right of every person to health, and to the conditions and facilities necessary to good health, and to health care services, including reproductive health care.” However, it is apparent that significant sums of damages are available to persons who are proved to have suffered loss by virtue of a breach of duty of care on the part of medical practitioners. Awards of damages are rising in order to provide plaintiffs with adequate compensation for harm that they have suffered from medical negligence. While vicarious liability will generally lie for a hospital where negligence takes place, it will be rare for contributory negligence to lead to a reduction in damages.

It is trite law, in context of medical negligence, that the onus of establishing civil liability on the doctor’s part lies with the patient and liability must be established on a preponderance of probabilities. It is to be noted that, should the plaintiff be unable to prove his/her case on a preponderance of probabilities, judgment will be given in favour of the defendant; a court may, however, also order absolution fromthe instance. In delict, the plaintiff bears the onus to prove a wrongful act/omission on the part of the physician, as well as the element of fault (in the form of negligence) and that the act or omission caused him to suffer damages or personal injury. Where a defendant raises a special defence such as consent, contributory negligence or prescription, the onus of proof will be on the defendant. Generally, however, the application of the maxim of res ipsa loquitur is treated by the courts as a particular form of inferential reason, requiring careful scrutiny and giving rise to an inference of negligence rather than a presumption of negligence. The South African courts thus far have been reluctant to apply the maxim to cases of medical negligence, despite persuasive legal arguments that have been put forward that the maxim should be applied in specific circumstances with regard to the proof of medical negligence. In this respect general principles for the effective application of the maxim in cases of medical negligence, are, inter alia, that principles of procedural equality and constitutional considerations dictate that the maxim be applied in cases of medical negligence. It is for this reason that the present judgment under discussion (in tandem with s 27 of the Constitution) is instructive, despite the majority judgment of the Appellate Division (as it wasthen) in 1924, in Van Wyk v Lewis (supra), where it was held that the maxim does not find application in cases of medical negligence.

RESUMEN: Este artículo aborda el problema de la amplísima noción de re obligari contenida en los libri regularum del jurista romano Herenio Modestino: re obligamur, cum res ipsa intercedit. De los términos empleados por Modestino pareciera derivarse un concepto de obligación real que se identifica con toda obligación que se contrae por medio de la entrega de una cosa, es decir, una figura que en lo fundamental correspondería al moderno concepto de contrato real. Sin embargo, un atento análisis de la obra de este jurista demuestra que su noción de re obligari se encontraba restringida al mutuum, único supuesto de obligatio re contracta en el derecho romano clásico.

This textbook represents a survey study of American tort law suitable to American 1L students and foreign law students. When complete, chapters will cover: (1) introduction, (2) intentional torts, (3) defenses to intentional torts, (4) negligence, (5) defenses to negligence, (6) subjective standards, (7) strict liability, (8) necessity, (9) damages, (10) res ipsa loquitur, (11) multiple liabilities, (12) attenuated duty and causation (scope of liability), (13) affirmative duty, (14) nuisance, (15) media torts, (16) business torts, (17) worker compensation, and (18) government liability and "constitutional tort." This pedagogy is built on the teachings of Professor Marshall S. Shapo. Chapters will be added as they are completed, anticipating the full work by the end of 2022. (Updated with chapters 6 and 7 on November 9, 2021.)

To succeed in an action for negligence under the law of torts, a plaintiff must prove that the Defendant owed to the plaintiff a duty of care, that the Defendant had violated that duty of care, and that the plaintiff suffered some injury as a result of the breach of duty of care. Accordingly, before going into the question as to whether a breach of the duty has occurred, it is necessary to first resolve the issue as to existence or otherwise of a duty of care and the degree of such duty as well as standard of care. It is only after this that an examination into the actions of the defendant and as to whether a breach has occurred, would become necessary. This paper undertakes a critical look into involvement and attitude of the court over the years in resolving the question of breach of duty of care under the Law of Torts. Beginning with a cursory look at duty of care and the neighbor principle as enunciated in Donoghue v. Stevenson as well as the factors that determine existence or otherwise of duty, the paper proceeds for purposes of proving breach of duty, to determine the expected standard of care, the reasonable man’s test and the doctrine of Res Ipsa Loquitur. Then follows a consideration of what prevailing attitude of courts of law to (classes of defendants in cases relating to) breach of duty of care is, and a conclusion that acknowledges the continuing nature of discussions on breach of duty of care, especially in view of the wide and flexible nature of the subject and the fact it is more often than not, affected by numerous, sometimes unanticipated and unanticipatable circumstances.

Medical malpractice is an increasingly generic term to describe professional negligence that occurs in the course of medical care. Whereas traditionally, allegations of medical malpractice were almost always directed at physicians, medical groups, or hospitals, the causes of action based in medical malpractice are now regularly and increasingly addressed to advance practice providers, such as physician assistants, nurse anesthetists, nurse practitioners, and nurse midwives, as well as pharmacists and other allied health professionals. The process of litigation, the applicable standards of care, the various potential applicable legal doctrines, and the calculation of damages are fundamental to the litigation process. This topic is further addressed in Chap. 5.

Ulipristal acetate (Esmya©) has been hailed the new wonder drug with regard to the medical management of uterine fibroids, and many postulate that it will remove the need for surgical treatment in the future. While the results from the PEARL studies are certainly promising and its amenorrhoeic rates and reduction in fibroid size are unquestionable, there is still a paucity of data with regard to its long-term effects, the effects on its usage prior to surgery and its variable efficacy in different ethnic populations. To facilitate our knowledge further, independent studies with clear outcome measures evaluating the long-term effects of the drug in a wider, more representative, ethnic minority population as well as assessing its true cost-effectiveness compared to surgery are needed. The aim of this article is to review the historical aspects with regard to the management of uterine fibroids to gain an understanding of where we are now and to evaluate the wider use of ulipristal acetate, both its benefits and limitations and postulate where to go in the future in order to allow our women to make safe and informed choices regarding their treatment options.

In this paper we report the results of an empirical study of 112 appellate decisions on the contributory negligence doctrine in England and Wales between 2000 and 2015. It is the first study of its kind in any common law jurisdiction, and builds on earlier research in which we looked at the doctrine's operation in first instance courts. Our dataset comprised every appellate decision in which contributory negligence was an issue that was handed down during the study period and which we were able to access electronically. The most important findings include the fact that appeals succeed more frequently in relation to the existence of contributory negligence than with respect to apportionment; that the overall prospect of winning an appeal on contributory negligence does not depend on whether the first instance court is a county court or the High Court; that claimants are nearly twice as likely to win an appeal regarding the existence of contributory negligence as defendants; and that by far most common discount imposed following an appeal is 50%.

This case problem will provide the student with the familiarity that they will need for the concepts of contributory negligence and last clear chance. It should also be noted that the concept of last clear chance is on the wane as a legal maxim. It is applicable in states that still use the legal defense of contributory negligence. Whereas in other states, which constitute the majority, the courts apply the concept of comparative negligence, which apportions the monetary damages given by the fact finder. There may be other considerations depending upon the country of the legal action, as this case study is based solely on United States laws.

This Comment addresses Professor Dillbary’s claim that the res ipsa loquitur doctrine is a form of stacked inferences that is likely to reduce the parties’ incentive to take care and to result in more accidents. Using a simple model, Professor Dillbary shows that the parties would depart from the due care standard because of the application of res ipsa loquitur. This Comment criticizes the author’s arguments for a more limited application of res ipsa loquitur in cases involving multiple actors.

This chapter discusses the difference between the Law of Torts and Contract and Criminal Law. It explores the tort of negligence, considering the necessary elements for a claim of negligence, namely the defendant owed the claimant a duty of care, the defendant breached that duty of care, and reasonably foreseeable damage was caused by the breach of duty. The chapter considers the special requirements for the recovery of pure economic loss and for loss as a result of psychiatric injuries, looking at both primary and secondary victims. The principles relating to breach of a duty of care, including the standard of care, are discussed. The chapter concludes with a discussion of the final element, considering the need for a causal link between the breach of duty by the defendant and the damage suffered by the claimant.

This contribution distinguishes two kinds of responsibility: the basic (or ‘metaphysical’) kind that we all inescapably have as functioning human beings; and the assignable (or ‘political’) kind that connects each of us with some particular tasks, and not with others. Having explored some differences between the two, and in particular the role of law's authority in connection with each, the discussion turns to the negligence standard, especially but not only as it figures in tort law. Recently, several philosophers have attempted to find a role for the negligence standard in the metaphysics of basic responsibility. This contribution resists that development and stands up for the traditional lawyer's view that the negligence standard belongs to the pliable politics of assignable responsibility. Basic responsibility, it is argued, is fundamentally strict.

An essential element of the tort of negligence is the duty of care, which is measured by the objective standard of a reasonable person and does not take into account a defendant’s personal characteristics. In Dunnage v Randall, the Court of Appeal was tasked with deciding whether a person’s mental illness should be considered when defining the appropriate standard of care. The court held that the deceased, an undiagnosed paranoid schizophrenic who set himself on fire, was subject to the objective standard, breached his duty by failing to act with reasonable care and was therefore liable for the burns his nephew sustained while attempting to prevent the incident. The court further found that a defendant can only escape liability for negligently caused injury if their mental illness entirely eliminates responsibility, thus articulating a strict approach towards the liability in tort of persons suffering from mental illness. As this comment will discuss, the Dunnage decision is a handy illustration of the basic tenets of the tort of negligence, revealing the policy considerations at play and questioning the underlying rationale of the tort law regime.

Samantha Galway is a second year law student at Queen's University in Kingston, Ontario. She prepared an earlier version of this paper for her first year Torts Class, in which she received the Fasken Martineau DuMoulin LLP Prize in Torts, awarded on the basis of academic excellence. Gord McKee is a senior litigation partner at Blake, Casseis & Graydon LLP, whose practices focuses on product liability and class action defence. He was co-author on an earlier article published in the Defense Counsel Journal discussing causation law in Canada. (1) AT least until 2012, there was significant confusion in Canadian jurisprudence surrounding one aspect of the standard for causation in negligence actions. Canadian courts referred to this aspect as the "material contribution" test. In some of its articulations of this test, the courts were talking about a concept similar to the U.S. "substantial contributing factor" test. But in others, they seemed to be talking about something very different. The Supreme Court of Canada had been criticized by academic commentators for its failed attempts, in its earlier decisions in cases such as Athey v. Leonati (3) and Hanke v. Resurfice Corp. (4), to clarify the law in this area. Some critics, including one of the authors of this paper, argued that these decisions only served to further complicate an already unclear area of Canadian tort law. (5) In 2012, the Supreme Court addressed the issues raised in a number of these criticisms, and substantially clarified the law, drawing a clear distinction between two more precisely worded concepts --"material contribution to injury" and "material contribution to risk". (6) The former concept is nothing new or surprising, and akin to "substantial contributing factor". The same cannot be said for the latter, however. This paper will examine in more detail the 2012 decision of the Supreme Court of Canada in Clements (Litigation Guardian of) v. Clements, (7) and the Court's guidance regarding the material contribution to risk test. While the material contribution to risk test is now clearly part of Canadian tort law, it is a doctrine that will only rarely come into play. For this reason, the test has been referred to as the "unicorn" of Canadian law, often talked about but rarely seen. (8) Given the right fact pattern, this doctrine may be available to assist a plaintiff to establish liability in a negligence action where "but for" causation cannot be established, with or without application of the material contribution to injury test. I. "But for'" Is Still the Default Test for Causation Causation is one of the requisite elements that must be established to bring an action in negligence. It is required in order to link the harm inflicted on the plaintiff to the breach of duty owed by the tortfeasor. (9) To allow recovery where an injury would have occurred absent any breach of duty on the defendant's part would neither further the goals of compensation, fairness and deterrence, nor comport with the theory of corrective justice that underlies the law of negligence. (10) The fundamental rule for determining causation in Canada continues to be the "but for" test. (11) The plaintiff must establish that but for the defendant's negligent conduct (falling below the applicable standard of care) the plaintiff would not have experienced the injury. (12) The defendant's conduct does not have to be the sole cause or even the most important. It just has to have been a materially contributing factor--a necessary ingredient--in the occurrence of the injury. Establishing this connection is a "factual inquiry". (13) Plaintiffs must establish "but for" causation on a balance of probabilities in order to succeed in their claim. The Supreme Court of Canada in Clements reaffirmed that the court's go-to tool for determining causation remains the "but for" test. However, the Court in Clements also acknowledged that there are circumstances where it may be impossible for a plaintiff, through no fault of his or her own, to prove causation. …

In spite of following one of the best management strategies, by the competent doctors with best available infrastructures in patient care, undesired results harming the patient cannot be avoided. Does it mean all these undesired results causing damage to the patient are as a result of medical negligence? Nowadays, patients are more aware of their rights on account of increased literacy level, role of print, electronic and social media and above all enactment of new law i.e. Consumer Protection Act 1986.Though the question of medical negligence is decided by Courts, but Courts on their own are not trained in medical science. Their decision is based on expert’s opinion. Judges apply the basic principle of law in conjunction with the law of land to make a decision. Reasonableness and prudence are the guiding factors. This paper deals with the legal aspects of medical negligence i.e. what is negligence and its type and various judgements especially the Jacob Mathew vs. State of Punjab 2005 and Anr, Martin F.D’Souza vs. Mohd. Ishfaq 2009, V. Kishan Rao vs. Nikhil Super Specialty Hospital 2010 delivered by the Apex Court to make the law of negligence more rational and directions given to subordinate Courts, various Consumer Fora, State and investigating agencies regarding procedures to be followed before filing a complaint or registering a case of criminal negligence against the doctor.

In this article we report the results of an empirical study of 368 first instance decisions on the contributory negligence doctrine handed down in England and Wales between 2000 and 2014. The two central questions at which we looked were: how often a defendant's plea of contributory negligence was successful; and by how much a claimant's damages were reduced when a finding of contributory negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: the claimant's age; the claimant's gender; the type of damage suffered by the claimant; the contextual setting of the claim; and the year of the decision. Our study uncovered several important truths about the contributory negligence doctrine hidden in this mass of case law, some of which cast significant doubt on the accuracy of widely held views about the doctrine's operation.

Accidents are becoming automated. From self-driving cars to self-flying drones, robots are increasingly colliding with the world. And one of the most pressing questions raised by these technologies—indeed, one of the great regulatory challenges of the coming era—is how the law should account for crashes involving such complex automated systems. By now, many have weighed in, including the field’s luminaries. And, though responses vary, a tentative consensus has emerged on at least one front. Age-old liability regimes are essentially nonstarters. For negligence and design defect theories both require a showing of fault. And in a world where vexingly complex robots roam, how could one possibly find the needle of fault in a haystack comprised of millions of lines of computer code? This Article challenges that view. In sharp contrast to the prevailing wisdom, it argues that widespread debates over the so-called ‘vexing tort problems’ raised by modern robots have overlooked a crucial issue: inference. Fault, after all, needn’t be shown by pointing directly to a faulty line of code. Like all facts, it can be proven indirectly through circumstantial evidence. Indeed, as the ancient negligence rule of res ipsa loquitur makes plain, sometimes an accident can “speak for itself.” Using the first robot accused of negligence as a case study, this Article shows how advanced data-logging technologies in modern machines provide richly detailed records of accidents that, themselves, speak to the fault of the parties involved. In doing so, it offers the first wide ranging account of how inference-based analysis can—and, in fact, already does—elegantly resolve liability determinations for otherwise confoundingly complex accidents. After showing that the purportedly novel challenges posed by robots are neither unprecedented, unresolvable, nor even unique to emerging technologies, the Article then takes a more practical turn. Drawing from a rich vein of precedent involving automated accidents, it outlines steps that courts, practitioners, and policymakers can take to streamline fault determinations using an approach it calls robot ipsa loquitur. With trillion-dollar markets and millions of lives on the line, it argues that drastic calls by leading experts to upend conventional liability are ahistorical, contrary to tort law’s fundamental goals, and unnecessary to protect the interests of accident victims. A simpler, more productive approach would let the robot speak for itself.

This research is a library research that uses data in the form of books, laws, articles, journals and other literature related to the title, while the technique and data collection is by collecting various ideas, theories and concepts from various literatures that focus on the process of comparison between the arguments or other laws. The results of the study can be drawn a conclusion that the doctrine of res ipsa loquitur can be applied in Indonesia through the evidences that have been concluded by the judge, in accordance with applicable law. Article 173 of the RIB states that the allegations which are not based on an applicable law, may only be considered by the judge in passing the verdict, if the allegations are important, thorough, certain and in accordance with one another. In line with Article 1922 of the Civil Code, it is stated that the allegations that are not based on the law are left to the consideration and alertness of judges, which should not be considered by other allegations, other than those that are thorough and certain, and in accordance with each other

Recent High Court and Supreme Court judgments have awarded large compensations for complications arising out of intravenous treatment. Extravasation of fluids and drugs is the most common complication of any medical procedure worldwide. Extravasation injury leading to gangrene occurs rarely and is due to factors related to patient characteristics, underlying disease, and the type of drug which is being injected. Human error rarely may be contributory to development of the extravasations and injury resultant thereof, but to label all of these complications as negligence by the application of “res ipsa loquitur” has serious consequences. High compensation risk for a complication which is faced universally by all doctors has the potential to raise the cost of this simple procedure.

The doctrine of res ipsa loquitor can allow a plaintiff to raise an inference of negligence which a defendant is then compelled to refute. However, the doctrine has rarely been applied in clinical negligence contexts because courts have been reluctant to require doctors to refute an inference of responsibility for pathophysiological outcomes. But does that imperative apply equally to aesthetic surgery? A recent case shows that it does.

The new remedies envisaged by article 120 quater, paragraph 7, t.u.b. (on loan portability) and by article 2, paragraph 16, decree n. 3 of 2014 (on the transfer of payment services), lie at the uncertain intersection of sanction, indemnification and full compensation. Contrary to the majority opinion, and more to the point of the rules' pro-competitive aims, the author argues that, in spite of the wording of article 120 quater t.u.b. (providing that the original lender is «in any case» expected to indemnify the client), the plaintiff may legitimately enforce his right against any intermediary responsible for the delayed execution of the service (hence, even against the new lender, if the delay is attributable to him). In the neighboring context of the transfer of payment services a different problem has arisen: one the one hand, the legislator introduced an indemnity in favor of the client «proportionate to the length of the delay and to the balance available on the account»; on the other, it cautioned that the criteria necessary to quantify the said indemnity will be provided by secondary regulation, which has not yet been enacted. The solution proposed in this paper is to let the judge quantify the indemnity based on mere equity, thus safeguarding the fundamental deterrent effect originally envisaged by the legislator.

Surgeons, anesthesiologists, and other health care providers may be subject to liability for injuries relating to improper patient positioning in neurosurgical procedures. Lawsuits arising out of these types of injuries typically allege medical malpractice, but some also include claims for lack of informed consent. These torts are, for the most part, governed by state law; consequently, litigants may be subject to different requirements depending on where the lawsuit is filed. Recent federal legislation has attempted to standardize aspects of these claims, but, to date, these efforts have been unsuccessful.

One proposed way of preserving the link between criminal negligence and blameworthiness is to define criminal negligence in moral terms. On this view, a person can be held criminally responsible for a negligent act if her negligence reflects a deficit of moral concern. Some theorists are convinced that this definition restores the link between negligence and blameworthiness, while others insist that criminal negligence remains suspect. This article contributes to the discussion by applying the work of ethicist Nomy Arpaly to criminal negligence. Although not interested in legal issues herself, Arpaly has a well-developed theory of moral agency that explains moral concern in terms of responsiveness to moral reasons. Introducing her work to the ongoing scholarly debate will be helpful for two reasons. First, while a definition of negligence in terms of moral concern is recognized as one proposed solution to the negligence–blameworthiness problem, authors promoting it have yet to give a systematic account of...

This chapter examines the circumstances in which a barrister and solicitor can be sued in negligence or for breach of contract. Clients can sue a solicitor based on the law of contract, the law of fiduciary duty, and the law of negligence. In general, a client is going to face an uphill battle in suing a solicitor or barrister. In relation to a breach of contract, it can be difficult to establish the breach of reasonable skill. In relation to negligence, proving breach of a duty of care and the causation of a loss is problematic.

When an accident is a mystery - when it is not clear what happened - courts often rely on stacked inferences. Such inferences are subject to much debate and are even prohibited by some jurisdictions. This article reveals that the doctrine of res ipsa loquitur ("the thing speaks for itself") is a form of stacked inferences and that despite its affiliation, it has been widely accepted. The article further shows that application of res ipsa loquitur in cases involving multiple actors can adversely affect precaution and activity levels. It concludes with a call for a careful application of res ipsa loquitur in cases involving multiple actors.

En la justicia chilena la responsabilidad civil médica descansa en reglas de entrada y de salida que informan a los litigantes de las cuestiones de hecho que deben ser probadas en cada juicio. Este artículo demuestra que la práctica chilena ha regulado esa prueba al consagrar la soberanía del juez de instancia para decidir los hechos probados y al testimonio médico como la mejor evidencia disponible ante la infracción de un deber de cuidado. La incertidumbre que generan los riesgos terapéuticos ha fomentado el uso judicial de máximas de la experiencia -incluido el res ipsa loquitur- para dirimir los riesgos que cada caso entraña. Esta es una regulación probatoria que se aplica tanto a la responsabilidad que se deriva de un tratamiento (profesionales médicos) como la que se sigue de la organización del servicio de salud (Hospitales y Clínicas).

Medical profession differentiates itself from other professions, where apart from the knowledge and skill, touch of humanity is also required. Since the inclusion of medical profession under the ambit of Consumer Protection Act there has been a spurt in the number of cases against the doctors. Bolam's test is applied to assess medical negligence of doctor. Cases against the doctors can be brought in a civil or criminal court, and accordingly the negligence may be civil or criminal negligence. In deciding criminal negligence against doctors criminal intent need to be proved. The Medical Law and Ethical Code for medical professional in India are prescribed by Indian Medical Council, under the section 20-A of Indian Medical Council Act of 1956 and Amendment Act No. 24 of 1964.