Criminal & Delictual Liability: The Reasonable Man and Reasonable Doubt

Similar documents
Negligence: Criminals, Drivers, Professionals, and the average Joe What everyone should know RAKEEBA MAHOMED 6 NOVEMBER 2014

214 Part III Homicide and Related Issues

Supreme Court of Florida

Florida Jury Instructions. 7.2 MURDER FIRST DEGREE (1)(a), Fla. Stat.

HSC Legal Studies. Year 2017 Mark Pages 46 Published Feb 6, Legal Studies: Crime. By Rose (99.4 ATAR)

Responsible Victims and (Partly) Justified Offenders

MODULE 5: unlawfulness

Fall 2008 January 1, 2009 SAMPLE ANSWER TO FINAL EXAM MULTIPLE CHOICE

NEGLIGENCE. All four of the following must be demonstrated for a legal claim of negligence to be successful:

ADMINISTRATION OF JUSTICE GENERAL ASPECTS OF CRIMINAL LAW. Name: Period: Row:

ELEMENTS OF LIABILITY AND RISK

Civil Law is known as Private Law. Regulates disputes between individuals; between parties; and between individuals and parties.

Health service complaints

CHRISTIAN SIKHOLELO TYATYA THE MINISTER OF CORRECTIONAL SERVICES JUDGMENT

Medical Negligence. CUHK Med 5 Surgery Refresher Course 28 June Dr. LEE Wai Hung, Danny. MBChB, MD, FRCS, FHKAM(Surgery) LLM(Medical Law), JD

NOTICE OF HEARING DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO B ETWEEN: COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

In the matter between: CASE NO. 1783/2012

LEGAL STUDIES U1_AOS2: CRIMINAL LAW

M I L L E R T H O M S O N LLP Barristers & Solicitors, Patent & Trade Mark Agents

LAW ENFORCEMENT LIABILITY

HSC Legal Studies. Year 2016 Mark Pages 33 Published Feb 7, Legal- Crime Notes. By Annabelle (97.35 ATAR)

H v FETAL ASSESSMENT CENTRE

Homicide. Motor Vehicle Offenses Resulting in Death. First Degree Murder. Second Degree Murder. For example. Involuntary Manslaughter

Section 17 Lesser Evils Defense 535. Chapter Ten. Offenses Against the Person. Article One. Causing Death

JUDGMENT: 8 NOVEMBER [1] This is an application by the Defendant to permit the joinder of Dr. Smith (the

DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO. - and - ALLEN PHILLIP DENYS

OFFENSES BY PUNISHMENT RANGE

DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO. - and - MARTIN JUGENBURG

SUMMER 2009 August 7, 2009 FINAL EXAM SAMPLE ANSWER

Laws Relating to Child Sexual Abuse

THE LEGAL CONSEQUENCES OF BREAKING THE RULES

APPENDIX B. 7.7 MANSLAUGHTER , Fla. Stat.

J U D G M E N T CRIMINAL APPEAL NO OF 2007 (Arising out of S.L.P (Crl.) No.4805 of 2006) Dr. ARIJIT PASAYAT, J.

Business Law Chapter 9 Handout

TORTS SPECIFIC TORTS NEGLIGENCE

COLLEGE OF NURSES OF ONTARIO. - and - TANIA SCOTT REGISTRATION NO. JE06287 NOTICE OF HEARING

Washoe Tribe of Nevada and California. Law & Order Code TITLE 3 TORTS. [Last Amended 10/1/04. Current Through 2/3/09.]

AN ANALYSIS OF WRONGFUL BIRTH AND WRONGFUL LIFE CLAIMS IN SOUTH AFRICA. Tara Tregoning

The mere fact that a person has committed an act that complies with the definitional elements and is unlawful is not sufficient to render him

Clinical negligence by Marc Cornock Senior Lecturer Faculty of Health, Wellbeing and Social Care The Open University

Legal Liability. Sophie Foyston ROB

FILED: NEW YORK COUNTY CLERK 06/07/ :33 PM INDEX NO /2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/07/2016

DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO. - and - JACK SAUL MOUSSADJI

Unit One Introduction to law

PREPERED BY: MR. MOHAMAD YOUSUF DAR

Physician s Degree of Care; Proximate Cause

Negligent In Your Legal Knowledge?

Criminal Justice: A Brief Introduction Twelfth Edition

[page Snyman] 1. Legality 2. Conduct 3. Causation 4. Unlawfulness 5. Criminal accountability/ capacity 6. Fault

Malpractice: The Legal Point of View

TORTS SUMMARY LAWSKOOL PTY LTD

Legal Memo on Law on Compensation Translated from Dari

BERMUDA MEDICAL PRACTITIONERS ACT : 38

BUSINESS LAW. Chapter 8 Criminal Law and Cyber Crimes

CASE NO: 1084/2012 THE MEMBER OF THE EXECUTIVE COUNCIL

DEATH GIVES BIRTH TO THE NEED FOR NEW LAW:

Offences 3. S300 Unlawful homicide 3. S302(1)(a) Intentional Murder 4. S303 Manslaughter 7. S335 Common Assault 9

ARKANSAS COURT OF APPEALS

Part of the requirement for a criminal offence. It is the guilty act.

Criminal Law Exam Notes

Question 1. On what theory or theories might damages be recovered, and what defenses might reasonably be raised in actions by:

CRIMINAL LAW ESSAY SERIES ESSAY QUESTION #2 MODEL ANSWER. 1. With what crime or crimes should Dan be charged? Discuss.

Summer 2008 August 1, 2008 SAMPLE ANSWER TO FINAL EXAM MULTIPLE CHOICE

Civil Liability Amendment (Personal Responsibility) Act 2002 No 92

The section Causation: Actual Cause and Proximate Cause from Business Law and the Legal Environment was adapted by The Saylor Foundation under a

Supreme Court of Florida

SOCE311. Session 3. Legal Aspects. Department of Social Sciences.

S11Y0222. IN THE MATTER OF ROBERT DOUGLAS ORTMAN. This disciplinary matter is before the Court pursuant to the report and

H 5104 S T A T E O F R H O D E I S L A N D

Topic 5 Non-fatal,Non-sexual offences against the person

4. What is private law? 3. What are laws? 1. Review all terms in chapters: 1, 2, 4, 5,6, 7, 8, 9, 11, 12, 13, What is the purpose of Law?

Bill C-14 Amendments in the Context of the Statutes being Amended

H.M. MUSI, JP et HANCKE, J

OBJECTIVES: Differentiate between federal and state laws and develop understanding between crimes against people, and crimes against property.

107 ADOPTED RESOLUTION

Increase in Medical Negligence Claims

DISCIPLINARY CODE & PROCEDURE

H 5447 S T A T E O F R H O D E I S L A N D

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPEAL NO. 636 OF 2017 [Arising out of SLP (Crl.) No.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2015] NZHC 492. FRANCISC CATALIN DELIU Plaintiff

MEDICAL NEGLIGENCE AND LAWS IN SELECTIVE COUNTRIES OF WORLD

21. Creating criminal offences

Professional Liability for Engineers. Presented by: Bill Henn Attorney Henn Lesperance PLC

MEDICAL NEGLIGENCE AND CRIMINAL LAW

EXPLAINING THE COURTS AN INFORMATION BOOKLET

REPUBLIC OF SOUTH AFRICA

Loveless, Allen, and Derry: Complete Criminal Law 6e, Chapter 02

N[...] E[...] N[...] obo T[...]...PLAINTIFF DR E M SEKWABE...1 ST DEFENDANT. THE MEDICAL MANAGER OF LIFE ST. DOMINICS...2 nd DEFENDANT JUDGMENT

Business Law Tort Law Unit Textbook

The defendant has been charged with second degree murder. 1

MBE WORKSHOP: TORTS PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW

MLL214: CRIMINAL LAW

Principles of Common Law 4 January 2017

Introduction to Criminal Law

NOTICE OF HEARING DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO B ETW~CN: COLLAGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Tort Reform (2) The pleading specifically asserts that the medical care has and all medical records

SOC 3395: Criminal Justice & Corrections Lecture 4&5: Criminal Law & Criminal Justice in Canada II:

ALABAMA BOARD OF ATHLETIC TRAINERS ADMINISTRATIVE CODE CHAPTER 140 X 6 COMPLIANCE AND DISCIPLINARY ACTION TABLE OF CONTENTS

FILED: NEW YORK COUNTY CLERK 03/15/ :24 AM INDEX NO /2016 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/15/2016

JOINT AND SEVERAL LIABILITY OF TRUSTEES OF PENSION FUNDS. Whether or not the trustees of a pension fund are to be held jointly and severally

Transcription:

Criminal & Delictual Liability: The Reasonable Man and Reasonable Doubt Yolande Guidozzi BScNurs, LLB, MBA (Wits) Steve Biko Centre for Bioethics University of the Witwatersrand

Lecture Structure Public v Private Law overview. Differences between a crime and a delict. Elements of both. Professional Negligence. Case examples. Vicarious liability. Unprofessional conduct.

Divisions of Law PUBLIC LAW Governs the relationships between organs of state and the state and the citizen: eg Constitutional Law Administrative Law Criminal Law eg PRIVATE LAW Governs the relationships between people: Law of Delict Law of Persons & Family Law of Personality Law of Patrimony Indigenous Law Kleyn, Viljoen, 2002

DIFFERENCES CRIME (public law) Protects the interests of the public The State prosecutes people Unequal power distribution Proof of guilt must be beyond a reasonable doubt Consequence of a conviction is punishment (jail, fine, community service...) DELICT (eg of private law) Protects individual interests People sue other people (the state can be a party, too) Equal power between parties Proof of liability must be on a balance of probabilities Consequence of being found liable is compensation for harm caused, the payment of money

Burden of Proof The responsibility to prove the case, or burden of proof in a criminal trial is on the State. The State brings the accused to court, and through the trial process must attempt to prove guilt beyond a reasonable doubt. This is a difficult task because the guilt of the accused must then be the only reasonable conclusion that can be drawn from the facts after all the evidence has been led. With civil cases (private law) the burden of proof for the plaintiff (complainant) is on a balance of probabilities which is easier to achieve. The complainant must simply show that his/her story is more believable than his opponent s in order to win his case. Kleyn, Viljoen, 2002

ELEMENTS CRIME DELICT Act or omission Against the law (unlawfulness) Accused is at fault (blameworthy state of mind) Causal link between act and consequence may be required (eg murder) Conduct which is Wrongful and Culpable and Causes Damage/harm to another

AIM For criminal cases the aim is to punish people who threaten the good order of society; The outcome is that the accused is found guilty (and sentenced) or not guilty. For civil cases, remedies are granted and clarity brought to disputed legal positions. The outcome is that an action (trial) or application (case argued on paper by advocates; no witnesses) is either allowed or dismissed. Kleyn, Viljoen, 2002 NB: an act can be a crime and have a claim in delict, too, for example a case of culpable homicide because of medical error.

PROFESSIONAL NEGLIGENCE

Professional Negligence When a HP negligently fails to exercise the degree of skill and care of a reasonably skilled practitioner in his/her field of practice (ref: Castell v De Greef 1993 (3) SA 501(C)). R v Van Schoor 1948 (4) SA 349 (C) incorrect administration of medicines Specialists are expected to exercise a greater degree of skill and care than general practitioners. More complicated procedures also require a greater degree of skill and care than simple ones.

Test for Professional Negligence The HP failed to foresee the possibility of harm in circumstances where... a reasonable person, in the same position, would have foreseen the possibility of harm occurring and... would have taken steps to avoid it. Note: There are no degrees of negligence for a health professional: either you are negligent or you are not.

Culpability: Who is The Reasonable person? - A fictitious person. - Not exceptionally gifted, careful or developed; - Not underdeveloped, reckless or someone who lacks prudence; - Able to be contextualised to the Reasonable Expert or the Reasonable student nurse, for example. (Slide adapted from H Snoyman)

Negligence is determined by the criteria of forseeability and reasonableness There may be NO LIABILITY when UNFORESEEABLE complications arise during treatment (eg due to hypersensitivity). The greater the likelihood of harm arising from the procedure, the greater the degree of care required. (eg where the HP is working with dangerous substances.) Also applies where the HP has special knowledge of an increased risk. In case of a sudden emergency a different level of skill may be justified, depending on the circumstances. A HP s liability is essentially dependent on the evidence given. It is case specific.

Doctrine of sudden Emergency There are 3 requirements for a HP to not be judged as negligent where the HP responds to an emergency situation The HP must be faced with imminent harm; The harm must not be caused by the HP s own negligence; The HP must not have acted in a grossly unreasonable manner; ie a reasonable person in that situation would have made the same error of judgment.

Case Examples Some examples of intentional conduct that amount to *medical malpractice but not negligence are: Unlawfully and intentionally failing to get informed consent from a patient (= assault). eg. LM v Gov. of Republic of Namibia 2012 JDR 1217(Nm) Unlawfully and intentionally killing a patient by active euthanasia (= murder). eg. R v Hartmann 1975 (3) SA 532 (C)) *Refers to intentional or negligent unlawful conduct of a HP that causes injury or damage to their client or his/her property. (McQuoid-Mason, Dada, A-Z of Medical law, p263).

Case Examples Successful litigation Plaster cast applied too lightly ischaemia, sepsis undetected, amputation of arm (Dube v Administrator, Tvl 1963 (4) SA 260 (W)) Plaster cast applied too tightly arm became shrunken, claw-like with limited function (Blythe v van den Heever 1980 (1) SA 191 (A)) Unsuccessful litigation Platinum needle of a syringe broke off in chest cavity and remained in body no negligence proved (Mitchell v Dixon 1914 AD 519) Swab left in abdomen after appendectomy and gall bladder operation-court said it was the theatre sister s duty to count swabs, not surgeon s (van Wyk v Lewis 1924 AD 438-444)

Reminder: Informed Consent (NHA, s6) Requires ensuring full knowledge by informing: in a language the patient understands; of health status (except if not in the best interests); the range of diagnostic procedures; treatment options; the benefits, risks, costs and consequences associated with them; that they may refuse health services and the implications of refusal.

VICARIOUS LIABILITY

Vicarious Liability Refers to the situation where one person is liable for another person s unlawful conduct even where the first person is not at fault (employer/employee relationship). This depends on the employer having control over the employee s actions such as in hospitals, nursing homes. It occurs where the employee commits an unlawful act/omission while performing his/her work. The employer is sued as well as the employee.

Vicarious Liability Double damages cannot be awarded, but once the employer has paid damages for the negligence of its employee, it can still claim the payment back from its employee afterwards. The courts have held that where there is a shortage of resources at a hospital (insufficient staff on duty), a standard of excellence cannot be expected which is beyond the financial resources of the hospital authority. (NB: In light of the Constitution in force from 1996, this may no longer be an acceptable reason for a lack of good service). (eg Collins v Administrator, Cape 1995 (4) SA 73 (C) 82)

Finally, SANC: Unprofessional Conduct 'unprofessional conduct' means a conduct which, with regard to the profession of a practitioner (ie any person registered ito s31(1) of the Nursing Act, No 33 of 2005), is improper, disgraceful, dishonourable or unworthy. S1, Nursing Act 33 of 2005 Eg: 31/01/13, The Herald R50 000 award in landmark Bay case R50 000 will be paid out to a Bethalsdorp woman after she was treated in an inhumane and contemptuous manner by nursing staff in PE. She was left holding her stillborn baby in a ward for hours while nurses joked and laughed around her.

So, the consequences of medical malpractice & professional negligence are... Criminal prosecution, where negligence causes death or intentional conduct results in harm. fine; sentence Civil liability for negligence, intentional wrongful acts (eg breach of confidence) or breach of contract. Payment of damages for financial loss (eg. medical expenses, loss of future earnings), may include a payment to cover pain and suffering as well; also payment for sentimental damages is possible. SANC takes disciplinary action: fine, suspension, struck of the roll.

Thank you!