DOCSLIB.ORG

The Incommensurability of the Archaic Perceptions of the Maxim Res Ipsa Loquitur in Medical Negligence Litigation

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Incommensurability of the Archaic Perceptions of the Maxim Res Ipsa Loquitur in Medical Negligence Litigation The incommensurability of the archaic perceptions of the maxim res ipsa loquitur in medical negligence litigation by CATHERINA ELIZABETH PIENAAR Submitted for the degree of DOCTOR OF PHILOSOPHY IN LAW to the Town Faculty of Law at the Cape University of Cape Town of Promoter: Prof A Price University July 2016 1 The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgement of the source. The thesis is to be used for private study or non- commercial research purposes only. Published by the University of Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University of Cape Town PREFACE The delict of medical negligence is based on the process of identifying fault on the part of a medical professional or medical institution for the harm caused to a patient. The medical professional or hospital is criticised for the alleged substandard care that resulted in injury to the patient. Unfortunately, medical professionals sometimes perceive a claim for compensation based on liability as a personal attack on their character that suggests that they are inefficient or incompetent, whereas it should be seen as a way of correcting a wrong. Furthermore, cases like Michael v Linksfield Park Clinic1contribute to public cynicism about a prejudiced judicial system that seems to favour the medical profession. Michael v Linksfield Park Clinic2embodies this perceived injustice, as it is a case where uncomplicated surgery for the repair of a broken nose in a healthy young man resulted in permanent brain damage. The facts in the causal chain of events were that the anaesthetist, in administering certain anaesthetic solutions, caused a hypertensive crisis that he failed to control. This caused the patient to go into cardiac arrest, which was not adequately managed. The patient suffered a hypoxic incident with insufficient oxygen to the brain and, ultimately, permanent brain damage. The medical professionals failed to explain the medical clinical course of an anaesthetic-induced error to the court and thus the court did not appreciate the medical reality. ‘Medical reality’, in this sense means the true interpretation of the medical facts. Because liability cannot arise before causation has been established, the focus of the thesis is on the medical interpretation of the injury in order to determine factual and legal causation. Perhaps the need to understand such ‘unfairness’ or injustice is the motive behind the legal appeals for the reintroduction of the res ipsa loquitur maxim in medical negligence cases in South Africa. Maybe it is a plea for the introduction of an all-encompassing phrase to confer a reverse onus on the defendant based on the complexity of the science of medicine – or indeed in all complex technical cases. Perhaps it is simply an appeal for greater equality in the doctor-patient relationship thereby advancing patient’s rights. The South African Constitution3 as the supreme law of the country includes a Bill of Rights for a society based on ‘social justice and fundamental human rights’4 with equal rights and equal opportunities to 12001 (3) SA 1188 (SCA). Cf CE Pienaar An analysis of evidence-based medicine in context of medical negligence litigation (unpublished LLM dissertation, University of Pretoria 2011), available at http://upetd.up.ac.za/thesis/available/etd-09212011-130356/unrestricted/dissertation.pdf (accessed 3 February 2012). Pienaar describes the anaesthetic chaos that occurred during the operation in detail. 2Michael (n 1). The plaintiff failed to discharge his onus of proof from the available medical evidence and the court dismissed the plaintiff’s case. See chapter 1 para 3.1 3The Constitution of the Republic of South Africa, 1996 (the Constitution). 4Preamble to the Constitution. 2 all.5 It stipulates that ‘everyone has the right to have access to health care services’ and the right to make decisions over your own body ie the ‘right to bodily integrity’.6 The Constitution places a positive obligation on the state to promote the rights of all South Africans taking into consideration the wrongs of the past, socio- and economic injustices and the right to equality and human dignity; this is referred to as a substantive approach to adapt the common law so that it fulfils the constitutional needs of the country. It should provide more substance to the concept of equality with a purpose to rectify wrongs and eliminate past racial discrimination.7 The Constitutional Court has linked the notion of equality with human dignity. Any violation of a human right affects a person’s dignity and should be interpreted as a form of discrimination.8 This strong constitutional influence resulted in the court leaning towards a wider interpretation of legal principles.9 This is in line with the global movement towards bending the rules of causation in certain cases, motivated by the desire to remedy breach of human dignity and to safeguard physical and bodily integrity.10 South Africa currently has a compromised health system. A finding of fault in medical negligence cases is directed at an individual health professional or institution and such claims rarely highlight organisational errors or badly managed systems. However, statistical evidence11that shows an increase in medical negligence litigation in the last five years may well indicate systemic failures. South Africa is fighting crime, corruption and systemic failures. Although it seems inadequate to promote human dignity to the homeless in South Africa where people are starving, it should remain our constitutional vision and goal to strive for and promote human dignity as a human value worthy of protection. It is certainly 5Preamble to the Constitution. 6Section 27(1)(a)and section 12(2) of the Constitution respectively. 7City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC). The court held that it is the duty of the municipality to eliminate all disparities in the community. The aim is substantive equality and not formal equality so the previously disadvantaged community was treated with a ‘softer hand’. 8Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape [2015] ZACC 33.The human worth (dignity) refers to a situation where all human beings are treated equally for purposes of section 9(2) of the Constitution and in respect whereof they may not be unfairly discriminated against in terms of section (3). See chapter 2 para 7. 9Oppelt (n 8). The majority ruled in favour of the plaintiff based on inadequate policy and system structures. 10Chester v Afshar (2004) All ER (HL) 24, where the English court developed the English common law on causation to protect patient rights and the ‘right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles’. 11See article written by Prof M Pepper (University of Pretoria, Department Immunology) http://www.news24.com/Archives/City-Press/Doctors-lose-patience-as-suites-spike-20150429 (accessed 14 March 2013). The author describes a case in point, the death of Rita Nel (45) of Carolina, Mpumalanga. On 2 April she was admitted to the Steve Biko Academic Hospital in Pretoria with a lung condition, and had to undergo a diagnostic CT scan. However, the scanner was broken and, because the Gauteng health department had failed to pay their suppliers, the latter refused to repair the machine. For three weeks, Nel lay untreated in the hospital, waiting in vain for the scan. She died untreated on 23 April. Cf Bulletin of the World Health Organization: Bridging the gap in South Africa, http://www.who.int/bulletin/volumes/88/11/10-021110/en/ 3 worthy of being developed by means of the substantive constitutional approach for a better South Africa.12One sees activists, like the group Know Your Constitution, 13campaigning for the Constitution to be made available to the people in all South African languages. From this, it is natural to see the public developing a growing interest in, for example, patients’ rights and awareness regarding the expected standard of health care delivery. Because the function of the Bill of Rights is to enable rights to be vindicated and to provide remedies when duties have been breached, it is not surprising to find claims based on the fallacy that any medical accident or ‘any medical injury’ or negative medical outcome is or should be seen as a breach of a legal duty by a medical professional. The global increase in litigation in the field of medical negligence is perhaps as a result of a heightened general awareness of patients’ rights. However, from a medical perspective, the increase in litigation may be based on unrealistic expectations from the public regarding treatment options and surgical outcomes. An additional cause for the increase in litigation may be the consequence of the rapid development in the field of technical-medicine (such as laparoscopic surgery) and its higher risk of injury.14 It is in this technical field where the incidence of injury decreases with the experience of the surgeon and where the unaware jurist might be tempted to make use of the res ipsa loquitur maxim. Another silent, yet fundamental, cause of the increased number of court cases is the shift in focus of managed health care systems to cutting costs rather than delivering effective health care. This has a marked influence on medical insurance systems. Such a notional shift in managed health care is cause for concern in respect of the expected standard of care, as cost- reducing principles increase the risk of compromising the golden standard of care delivery in health care. One can only be astounded at the lack of ethical considerations and the failure of integrity and respect for human life exhibited in Sibisi NO v Maitin, 15where a larger-than- normal baby was born with severe shoulder paralysis.
Load more

Recommended publications
  • What the Criminal Law Is Built Upon Howard Newcomb Morse
    Marquette Law Review Volume 34 Article 3 Issue 4 Spring 1951 What the Criminal Law is Built Upon Howard Newcomb Morse Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Howard Newcomb Morse, What the Criminal Law is Built Upon, 34 Marq. L. Rev. 255 (1951). Available at: http://scholarship.law.marquette.edu/mulr/vol34/iss4/3 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. WHAT THE CRIMINAL LAW IS BUILT UPON Howard Newcomb Morse* Let us consider how certain doctrines of the Law of Crimes exist in other branches of the common law, sometimes under different no- menclature. The doctrine of merger applies to both Criminal Law and Family Law-the absorption of the attempt into the completed crime and the fiction of the unity of husband and wife. For example, the United States local common law majority rule holds that the misde- meanor no longer merges by operation of law into the felony or the lesser felony into the greater, but rather that the American public prosecutor enjoys an election in the matter. Only the attempt is con- solidated by operation of law into the completed crime. Also, the American local common law majority rule holds that the common law fiction of the unity of husband and wife remains in only certain aspects
    [Show full text]
  • The Application of the Doctrine of Res Ipsa Loquitur to Medical Negligence
    University of Pretoria etd THE APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITUR TO MEDICAL NEGLIGENCE CASES: A COMPARATIVE SURVEY by PATRICK VAN DEN HEEVER B IURIS LLB (UOFS) LLM (UCT) submitted in accordance with the requirements for the degree of DOCTOR LEGUM at the UNIVERSITY OF PRETORIA PROMOTER: PROF DR P A CARSTENS JANUARY 2002 University of Pretoria etd II TABLE OF CONTENTS PREFACE XV SUMMARY (ENGLISH) XVII SUMMARY (AFRIKAANS) XX CHAPTER 1 1.1 GENERAL INTRODUCTION 1 1.2 PURPOSE 7 1.3 CHOICE OF LEGAL SYSTEM 7 1.4 METHODS 9 CHAPTER 2 THE APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITUR TO MEDICAL NEGLIGENCE CASES IN SOUTH AFRICA 2.1 INTRODUCTION 13 2.2 THE ORIGIN AND DEVELOPMENT OF THE DOCTRINE IN SOUTH AFRICA 15 2.3 REQUIREMENTS FOR THE INVOCATION OF THE DOCTRINE IN SOUTH AFRICAN LAW 18 2.3.1 Introduction 18 University of Pretoria etd III 2.3.2 Negligence 19 2.3.3 Control of the instrumentality 22 2.4 THE EFFECT OF THE APPLICATION OF THE DOCTRINE ON THE ONUS OF PROOF 23 2.4.1 Introduction 23 2.4.2 Res ipsa loquitur and circumstantial evidence 23 2.4.3 Onus of proof 28 2.4.4 The nature of the defendant’s explanation in rebuttal 30 2.5 MEDICAL NEGLIGENCE CASES 37 2.5.1 Introduction 37 2.5.2 Case law 40 2.5.3 LEGAL OPINION 59 2.5.3.1 Introduction 59 2.5.3.2 The majority judgment in Van Wyk v Lewis 60 2.5.3.3 Critical analysis of the majority judgment 65 2.5.3.4 Introduction 65 2.5.3.5 The evidence of Dr Lewis 65 2.5.3.6 Conclusion 68 2.6 SYNOPSIS 74 University of Pretoria etd IV 2.6.1 INTRODUCTION 74 2.6.1.1 The requirements for the
    [Show full text]
  • Forms of Liability in the Law of Delict: Fault-Based Liability and Liability Without Fault
    Janno Lahe Doctor iuris, Lecturer of Civil Law, University of Tartu Forms of Liability in the Law of Delict: Fault-Based Liability and Liability without Fault Through times, the question of strictness of liability has been one of the principal problems in the law of delict. Thus there has been a search for the limit to the extent of which damage must be borne by the aggrieved party and for the point from where on the aggrieved party must be compensated for the damage by a third person, i.e. generally the tortfeasor.*1 Or, more specifically, whether a fact of causing damage is sufficient to give rise to delictual liability or the tortfeasors fault is also required for that purpose has remained a timeless question. This article is aimed at analysing what the prevailing form of liability is in delictual law and what it should be. In addition, the article will seek an answer to the question of what the trends of development are as regards the strictness of delictual liability. Understandably, this sphere of problems is specific not only to Estonia: the problems in question are topical in all legal orders. This article is divided into four subtitles: the first provides a brief review on the historical development of liability in the law of delict and the second addresses the forms of delictual liability in present-day legal orders. The third subtitle offers an analysis regarding the rationale of different forms of liability in the law of delict. The final, fourth subtitle is dedicated to exploring whether and to what extent possible developments of liability in the law of delict can be pointed out on the basis of the present tendencies.
    [Show full text]
  • A Codified Law of Tort-The French Experience*
    Louisiana Law Review Volume 39 Number 4 Summer 1979 Article 2 8-1-1979 A Codified Law of orT t - The French Experience André Tunc Follow this and additional works at: https://digitalcommons.law.lsu.edu/lalrev Part of the Law Commons Repository Citation André Tunc, A Codified Law of orT t - The French Experience, 39 La. L. Rev. (1979) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol39/iss4/2 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. A CODIFIED LAW OF TORT-THE FRENCH EXPERIENCE* Andr6 Tunc** The purpose of this lecture is not to demonstrate any supe- riority of a codified law system over a system of judge-made law. The speaker does not wish to hide the fact that he strongly believes in the values of codification,' but to establish such values is not his present purpose. And, if he were to prepare a case for codiication, he would certainly not choose to build it on civil liability, a field of law where decision may depend on subtle variations of facts and which is presently so unstable that one may consider that it is in a state of crisis.' Nor is the aim of this lecture merely to present a summary of the French law of civil liability, as valuable pictures of this matter have already been drawn.' Between a demonstration and a mere photography, however, there may still be room for a critical examination.
    [Show full text]
  • The Transformation of South African Private Law After Ten Years of Democracy: the Role of Torts (Delict) in the Consolidation of Democracy
    University of Dayton eCommons School of Law Faculty Publications School of Law 2006 The rT ansformation of South African Private Law after Ten Years of Democracy: The Role of Torts (Delict) in the Consolidation of Democracy Christopher J. Roederer University of Dayton, [email protected] Follow this and additional works at: https://ecommons.udayton.edu/law_fac_pub Part of the Law Commons eCommons Citation Roederer, Christopher J., "The rT ansformation of South African Private Law after Ten Years of Democracy: The Role of Torts (Delict) in the Consolidation of Democracy" (2006). School of Law Faculty Publications. 47. https://ecommons.udayton.edu/law_fac_pub/47 This Article is brought to you for free and open access by the School of Law at eCommons. It has been accepted for inclusion in School of Law Faculty Publications by an authorized administrator of eCommons. For more information, please contact [email protected], [email protected]. The Transformation of South African Private Law after Ten Years of Democracy: The Role of Torts (Delict) in the Consolidation of Democracy Christopher Roederer * OUTLINE I. INTRODUCTION: DOES THE PRIVATE LAW HAVE A ROLE TO PLAY IN CONSOLIDATING DEMOCRACY ? II. THE CANCER OF APARTHEID : HOW SOUTH AFRICAN PRIVATE LAW CARRIED AND SPREAD THE INFECTION EVEN IF IT DID NOT CONTRACT THE DISEASE III. EVIDENCE OF INFECTION: E VALUATING THE RECORD IN KUTNER ’S TOP TEN TORT CASES FROM THE 1980S IV. ARRESTED DEVELOPMENT : WHAT IS MISSING FROM THE RECORD -- THE ABSENCE OF PROGRESSIVE TORT / DELICT REFORM UNDER APARTHEID V. POST - A PARTHEID TRANSFORMATION OF THE COMMON LAW : I NTRODUCTION TO THE CONSTITUTIONAL IMPACT ON THE DEVELOPMENT OF THE COMMON LAW IN SOUTH AFRICA VI.
    [Show full text]
  • Chapter 2 the Application of the Doctrine of Res Ipsa
    University of Pretoria etd 13 CHAPTER 2 THE APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITUR TO MEDICAL NEGLIGENCE CASES IN SOUTH AFRICA 2.1 INTRODUCTION Certain accidents happen in a manner which is unexplained but carries a high probability of negligence and although there is no direct evidence regarding the defendant’s conduct the court is permitted to draw an inference of negligence by applying the doctrine of res ipsa loquitur 1. Res ipsa loquitur means that the facts speak for themselves and is regarded as a method by which a plaintiff can advance an argument for purposes of establishing a prima facie case to the effect that in the particular circumstances the mere fact that an accident has occurred raises a prima facie factual presumption that the defendant was negligent. How cogently 1 Hoffmann and Zeffertt 551; Van der Merwe and Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg (1989) 144; Claassen and Verschoor 27; Schmidt and Rademeyer Bewysreg (2000) 174. University of Pretoria etd 14 such facts speak for themselves will depend on the particular circumstances of each case 2. In this chapter the origin and development of the doctrine is traced and the general requirements for the application of the doctrine, the nature –and effect of the application of the doctrine on the onus of proof and the nature of the defendant’s explanation in rebuttal are expounded. A detailed exposition of the application of the doctrine to medical negligence cases in particular, follows thereafter, with reference to case law and legal opinion. The judgment in Van Wyk v Lewis which had the effect that the doctrine cannot find application to medical negligence cases, is examined in detail and also subjected to critical analysis.
    [Show full text]
  • Private International Law: Choice of Law in Tort and Delict
    The Law Commission Working Paper No. 87 and The Scottish Law Commission Consultative Memorandum No. 62 Private International Law 2 Choice of Law in Tort and Delict LONDON H ER MAJ ESTY 'S STAT10 N ERY 0 F FIC E f6.25 net The Law Commission and the Scottish Law Commission were set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law I The Law Commissioners are: .'. The Honourable Mr Justice Ralph Gibson, Chairman Mr Brian Davenport, Q.C. Professor Julian Farrand Mrs Brenda Hoggett Dr Peter North Thesecretaryof theLawCommission isMrJ.G.H.Gassonandits offices are at Conquest House, 37-38 John Street, Theobald's Road, London, WC1 N 2BQ. The Scottish Law Commissioners are: The Honourable Lord Maxwell, Chairman Mr R. D. D. Bertram, W.S. Dr E. M. Clive Mr. J. Murray, Q.C. Sheriff C. G. B. Nicholson, Q.C. The Secretary of the Scottish Law Commission is Mr R. Eadie and its offices are at 140 Causewayside. Edinburgh, EH9 1 PR. This consultation paper, completed for publication on 28 September 1984, is circulated for comment and criticism only. It does not rewesent the final views of the two Law Commissions. I The Law Commissions would be grateful for comments on the consultation paper before 16 July 1985 All correspondence should be addressed to MrR J Dormer MissJ McLeod Law Cornmission or Scottish Law Commission Conquest House 140 Causewayside 37-38 John Street Edinburgh EH9 1 PR Theobald's Road London WC1 N 2BQ (Tel 01-242 0861, ext 227) (Tet 031-668 2131, ext 25) The Law Commission Working Paper No.
    [Show full text]
  • 8 Essential Elements of the Law of Delict
    Essential Elements of 8 the Law of Delict Jill Stirling Delict is the area of Scots law which deals with legal wrongs. It is some- times thought to be concerned just with negligence, but the scope of delict is much wider, as will be seen in this and the following two chapters. It is also an area which is still largely dealt with by common law, that is, by cases and courts. This allows a greater degree of flexibility in approach, as what may be defined as a delict can change as society changes. Delicts may be intentional or unintentional (negligence). When one person causes harm to another, there may or may not be liability in delict. The courts are careful to make sure that liability in delict is quite restricted, to make sure that the liability they face if not foreseen is at least foreseeable. Introduction to the concept of the legal wrong The Scots law of delict forms part of the law of obligations, along with the law of contract, which together owe their origins to Roman law, as seen in Justinian’s Institutes of 533 AD. The English equivalent to delict is tort, but the two legal systems vary in their approach to the problems arising. Scots law takes a general approach which makes it possible to include new delicts as society and circumstances change, whereas English law specifies particular torts, and then faces the problem of having to make new civil wrongs fit the existing categories. The word delict comes from the Latin ‘delictum’ which means ‘a legal wrong’.
    [Show full text]
  • France: French Tort Law in the Light of European Harmonization
    Journal of Civil Law Studies Volume 6 Number 2 Article 15 12-31-2013 France: French Tort Law in the Light of European Harmonization Olivier Moréteau [email protected] Follow this and additional works at: https://digitalcommons.law.lsu.edu/jcls Part of the Civil Law Commons Repository Citation Olivier Moréteau, France: French Tort Law in the Light of European Harmonization, 6 J. Civ. L. Stud. (2013) Available at: https://digitalcommons.law.lsu.edu/jcls/vol6/iss2/15 This Civil Law in the World is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Journal of Civil Law Studies by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. FRENCH TORT LAW IN THE LIGHT OF EUROPEAN HARMONIZATION Olivier Moréteau∗ I. The Draft Reforms of French Tort Law .................................. 760 A. The Draft Revision of the French Civil Code Tort Provisions ............................................................................................ 760 B. The Rationale of the Draft Projects and their Impact on the Civil Code .......................................................................... 762 1. The Catala Draft: A Revision Adulterating the Civil Code ........................................................................................ 764 2. The Terré Drafts: A Recodification Perfecting the Civil Code ............................................................................... 765 C. A Quick
    [Show full text]
  • Meaning of Fault with Regard to Liability for Damage Caused by the Unlawful Action of Another Person
    Janno Lahe Doctor iuris, Lecturer of Civil Law, University of Tartu Meaning of Fault with regard to Liability for Damage Caused by the Unlawful Action of Another Person It should be a self-evident, seemingly natural rule that everyone is liable only for the damage they them- selves have caused. However, there are situations in which society considers it just and necessary to place the burden of liability for the damage caused by one person on another person. Such solutions are justifiable when the person causing the damage and the person held liable are, on some level, closely interrelated. As regards liability for delicts committed by other persons, four types of cases in particular can be pointed out: the other person exempted from liability can be a minor without delictual capacity, a person without delict- ual capacity due to a disability, a minor with delictual capacity, or a service provider.*1 This article is aimed at analysing the requisites for one persons liability for the delict of another. The main attention is still directed to the element of fault as one of the primary requisites for liability in the law of delict. In other words, this article studies the question of whether one persons liability for a delict commit- ted by another person will require culpability of the tortfeasor, culpability of the person responsible for the damage or a possibility of blaming them both. Naturally, an assessment is also provided with regard to the question of which solution is justified in view of the subjective element of liability. The problems raised here are equally interesting to jurists of all countries regardless of the legal system or the law family.
    [Show full text]
  • Delictual Obligations
    chapter 6 Delictual Obligations The second main category of obligations is that which arises from non-contrac- tual liability for damage, i.e., delicts or civil injuries. A delict may be defined as a breach of legal duty which gives rise to action in favor of the victim. In this area of law, as also in many others, Thai rules are modeled upon the German Civil Code (Bürgerliches Gesetzbuch, or BGB) which grants the right to compensation at the suit of the injured party in case of unlawful infringement of a right. The purpose of delict law is to provide compensation to those who have suffered losses or injuries because of the wrongful conduct of others. With respect to this, Section 420 of the Code states that “A person who, willfully or negligently unlawfully injures the life, body, health, liberty, property or any right of another person is said to commit a wrongful act and is bound to make compensation therefore.” This means that every culpable act that causes damage to another either by commission or omission obliges the person who did it to compensate for it. In this way the legislator wishes to prevent harm as a result of unsafe behavior.1 Hence, if a person knowingly causes damage to another, he must compensate the injured party. To take a simple case as an example, it is the obli- gation of a lifeguard to ensure the safety of the swimmers at the pool, supervise the pool area, and instruct people how to swim. If he illegally fails to monitor and observe the pool area for safety, he is answerable in damages resulting from negligence.
    [Show full text]
  • May a Person Be Convicted of a Felony and Yet Escape Civil Liability Therefor? W
    Marquette Law Review Volume 10 Article 1 Issue 3 April 1926 May a Person be Convicted of a Felony and Yet Escape Civil Liability Therefor? W. B. Rubin Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation W. B. Rubin, May a Person be Convicted of a Felony and Yet Escape Civil Liability Therefor?, 10 Marq. L. Rev. 113 (1926). Available at: http://scholarship.law.marquette.edu/mulr/vol10/iss3/1 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. Marquette Law Review VOL. 10 APRIL, 1926 NO. 3 MAY A PERSON BE CONVICTED OF A FELONY AND YET ESCAPE CIVIL LIABILITY THEREFOR? W B. RUBIN* T D THE query suggested in the title, offhandedly one would an- swer "no." Yet the Supreme Court's decision in Clemens v. State,, creates the paradox. Clemens was convicted of violating the manslaughter statute Every other killing of a human being by the act, procurement or culpable negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder or manslaughter of some'2 other degree, shall be deemed manslaughter in the fourth degree." The trial court found as a matter of law that Clemens was guilty of but ordinary negligenceoand not gross or wilful negligence, that there was a total absence of a criminal intent, or of any intent of wilful or gross negligence whatever; that whatever Clemens did was the result of mere inadvertence to observe a statutory requirement when his auto- mobile ran into another automobile, colliding therewith and causing the death of the person in the other automobile, and that such death was the result of accident and misfortune.
    [Show full text]