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Article Library2018-11-03T17:31:22+00:00

Probationary contracts

A probationary employee is one who has a provisional employment contract. That is, the continuation of the contract is conditional on whether the employee’s work performance during the probationary period shows that he/she is capable to carry out the work properly.I am text block. Click edit button to change this text.

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Why Should I Instruct an Attorney in a Motor Vehicle Accident Claim

Should you be involved in a motor vehicle collision in South Africa you would have a claim against a statutory body known as the Road Accident Fund. The Road Accident Fund is an institution created by legislation which provides compensation to any victim be it a passenger, driver or pedestrian, depending on the circumstances, of the accident

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What Are Damages And How Are They Calculated

When you are  injured in either an accident or by a doctor during the course of a surgical procedure or as a result of the  doctor’s  failure to act either  promptly or at all you  suffer  harm.

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Consumer Rights – The Legal Process

No Court can restore your health, but an attorney who specialises in the field of personal injury can recover money from the wrongdoer to provide for future medical care and to make up any lost income, says Tzvi Brivik, director and senior partner at law firm Malcolm Lyons & Brivik.

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Medical Litigation

Law suits against the medical profession are on the increase. A number of factors have contributed to this. Developments in medical science and medical technology have assisted the medical practitioner in diagnosing, detecting, preventing, curing and treating diseases and abnormalities in the human body.

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Joint Minute Article

In order to save the Court time and to clarify medical issues at hand, experts come together to compile a report otherwise known as a “joint minute”. These reports consist of the issues agreed between the experts, resulting in a speedier resolution of the matter

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Joint Minute Article : Obligations of Medical Practitioners

Great care must be taken in compiling a Joint Minute. The Minute is used as evidence and is interpreted by the Courts. An expert has the duty to not tailor his/her medical opinion in order to suit a particular party. Furthermore, the medical practitioner has a duty to provide honest, substantiated expert views on matters that relate to their field of expertise.

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The Possibility of Decreasing Medical Malpractice Claims

The Health Professional Council of South Africa has recorded a constant increase in medical malpractice claims in the country every year. However, this increase can be prevented by practitioners by constantly considering what is known as the six Cs: consent, competence, compassion, consultation, communication and clinical records.

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Consumer Rights, Indemnity Clauses and Prescribed Rate of Interest

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Sexual Harassment

Sexual harassment is unwanted conduct of a sexual nature. This involves direct or indirect conduct such as following, watching, or pursuing the claimant.

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Principles of Medical Law

In order to save the Court time and to clarify medical issues at hand, experts come together to compile a report otherwise known as a “joint minute”. These reports consist of the issues agreed between the experts, resulting in a speedier resolution of the matter

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PEOPIL Conference 2013 in Lisbon

Cape Town Attorney Tzvi Brivik recently returned from Lisbon, Portugal where he addressed the Pan European Organization of Personal Injury Lawyers (PEOPIL) annual medical negligence and tourism conference.

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Code of Good Practice on Sexual Harassment

1.Introduction

(1) The objective of this code is to eliminate sexual harassment in the workplace.
(2) This code provides appropriate procedures to deal with the problem and prevent its recurrence.
(3) This code encourages and promotes the development and implementation of policies and procedures that will lead to the creation of workplaces that are free of sexual harassment, where employers and employees respect one another’s integrity and dignity, their privacy, and their right to equity in the workplace.

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Employers and Independent Contractors

No vicarious liability of employer for wrongdoing of his independent contractor particularly in building accidents, electrocutions and the like.

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Factual Causation and Omissions

In order to save the Court time and to clarify medical issues at hand, experts come together to compile a report otherwise known as a “joint minute”. These reports consist of the issues agreed between the experts, resulting in a speedier resolution of the matter

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Wrongfulness Of Omissions

The test for factual causation is the sine qua non ( or “but for” ) test. It entails the hypothetical “thinking away” of a particular alleged cause of a result and asking whether, absent that cause, the offending result would nonetheless have occurred.

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Personal Liability of Employer for Wrongdoing When Personal Injury Alleged of His Independent Contractor

The exclusion of an employer’s vicarious liability for the wrongdoing of his independent contractor underscores the parallel, yet distinct, rule that an employer may, in appropriate circumstances, be personally liable for the wrongdoing his independent contractor on the basis of his ( the employer’s ) own fault in relation thereto, ie, as a matter of ordinary delictual liability.

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The Salient Principles of Medical Law

Medical law is a species of healthcare law. It main objectives are to regulate the Medical profession and to protect, promote and above all to support the relationship between the doctor/ hospital and the patient….

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Medical Negligence – Nature of Causation, Damages and Compensation

Great care must be taken in compiling a Joint Minute. The Minute is used as evidence and is interpreted by the Courts. An expert has the duty to not tailor his/her medical opinion in order to suit a particular party. Furthermore, the medical practitioner has a duty to provide honest, substantiated expert views on matters that relate to their field of expertise.

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Public Sector Employees Absconding

Abscondment or desertion refers to cases where an employee stays away from work for a longer period, with the clear intention of not returning to employment.

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To Err is Human, but….

THE LEGAL PRINCIPLES:

When a patient approaches a Doctor, he does so with a certain expectation. The patient believes that the doctor will provide the medical relief sought with the proper skill and proficiency.

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Is it More Difficult to Succeed with a Defence…

We recently argued a matter in the Eastern Cape High Court, Mthatha, where our clients had sustained severe brain and orthopaedic injuries as a result of a single vehicle accident that took place near Beaufort West on 22 December 2007, when the bus driver lost control of his bus following a deflated tyre.

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Legal Implications – if a Party fails to Call a Witness

On frequent occasions, our courts have furnished guidelines regarding the conclusion(s) that can be reached and the inferences that stand to be drawn where a party fails to call a particular witness to testify.

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The Evaluation of Expert Opinion and Testimony

A proper and appropriate approach to be taken by our courts in the evaluation of expert opinionand testimony in medical cases (particularly when opposing and conflicting expert views are presented), the leading authority is the case of Michael v Linksfield Park Clinic (Pty) Ltd & Anor 2001 (3) SA 1188 (SCA).

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The Evaluation of Conflicting Versions of Evidence

By the very nature of litigation, in the majority of civil and criminal trials, conflicting, irreconcilable versions are frequently presented by opposing parties that need to be compared, weighed up against each other, assessed and evaluated.

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Consent in South African Medical Law

Consent in South African medical law is regarded as a justification ground negativing wrongfulness in respect of delictual claims. The consent must be informed.

In the absence of properly informed consent any medical procedure is prima facie wrongful. Performing a medical procedure in the absence of properly informed consent also constitutes a violation of a patient’s constitutional right to bodily integrity in terms of section 12(2)(b) of the Constitution.

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General Duty of Care

In Minister of Safety and Security and Another v Carmichele 2004(3) SA 305 (SCA) it was held as follows ad paragraphs [43] and [44];
“[43] Did the State owe a duty to the plaintiff? The answer lies in the recognition of the general norm of accountability: the State is liable for the failure to perform the duties imposed upon it by the Constitution unless it can be shown that there is compelling reason to deviate from that norm.

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Statutory Immunity to Government Organizations

1.The issue of statutory immunity was dealt with in Simon’s Town Municipality v Dews and Another 1993(1) SA 199 (A); particularly in what circumstances the state will be held to be negligent despite the usual immunity provision.

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Negligence in Train Accidents

1.In Ngubane v The South African Transport Services 1991(1) SA 756(A) the Appellate Division was called upon to determine the issue of negligence where a passenger fell out of a moving train and sustained injury. Kumleben J A restated the well known principles applicable to liability in delict in the following terms (at p 776-778):(1)

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Medical Negligence – Laparoscopic Repairs

An inguinal hernia is a defect in the inguinal canal  that allows intra­ abdominal content to herniate (or protrude) through the canal outside of the abdomen (and into the scrotum, in the case of a man).

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What a lot of Humbug

SIR-the allegations in your news item (New accident fund “to end lawyer’s greed”, September), referring to criticism of “lawyers greed” by Jacob Modise, CEO of the Road Accident Fund, are an attempt to deflect the responsibility for enormous wasting of legal costs by the fund onto lawyers, and are proven humbug. Mr Modise’s refrain was considered and rejected by the Cape High Court twice recently.

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Aviation

1. The Aviation Act No. 74 of 1962 (now repealed and replaced by the Civil  Aviation Act. No. 13 of 2009) applies to all aircraft whilst in or over any part  of the Republic. “Aircraft” means any machine that can derive support in the  atmosphere from the reactions of the air other than the reactions of the air  against the earth’s surface.

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Mistakes Teach the Road Accident Fund little

Sir- As a personal injury lawyer handling victims accident claims in the high courts against the Road Accident Fund (RAF), I endorse the Eastern Cape judges criticism to which Carmel Richard refers (Fund is against victims, November 15) relating to the war that the RAF has been waging on accident victims, Jacob Modise, the RAF’s CEO, in his reply (RAF not waging war on accident victims, November 22), as usual blames the legal fraternity for the administrative morass in the RAF, for which its board and the CEO must take responsibility, Criticism by judges is not confined to Eastern Cape, as Modise seems to suggest.

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