The Australian litigation landscape - Oral and Maxillofacial Surgery and general dentistry (oral surgery procedures): An analysis of litigation cases

Background: There are persistent concerns about litigation in the dental and medical professions. These concerns arise in a setting where general dentists are more frequently undertaking a wider range of oral surgery procedures, potentially increasing legal risk. Methods: Judicial cases dealing with medical negligence in the fields of general dentistry (oral surgery procedure) and Oral and Maxillofacial Surgery were located using the three main legal databases. Relevant cases were analysed to determine the procedures involved, the patients’ claims of injury, findings of negligence, and damages awarded. A thematic analysis of the cases was undertaken to determine trends. Results: Fifteen cases over a twenty-year period were located across almost all Australian jurisdictions (eight cases involved general dentists; seven cases involved Oral and Maxillofacial Surgeons). Eleven of the fifteen cases involved determinations of whether or not the practitioner had failed in their duty of care; negligence was found in six cases. Eleven of the fifteen cases related to molar extractions (eight specifically to third molar). Conclusions: Dental and medical practitioners wanting to manage legal risk should have regard to circumstances arising in judicial cases. Adequate warning of risks is critical, as is offering referral in appropriate cases. Pre-operative radiographs, good medical records, and processes to ensure appropriate follow-up are also important.

The doctrine of necessity and the detention and restraint of people with intellectual impairment: Is there any justification?

In Australia, the legal basis for the detention and restraint of people with intellectual impairment is ad hoc and unclear. There is no comprehensive legal framework that authorises and regulates the detention of, for example, older people with dementia in locked wards or in residential aged care, people with disability in residential services or people with acquired brain injury in hospital and rehabilitation services. This paper focuses on whether the common law doctrine of necessity (or its statutory equivalents) should have a role in permitting the detention and restraint of people with disabilities. Traditionally, the defence of necessity has been recognised as an excuse, where the defendant, faced by a situation of imminent peril, is excused from the criminal or civil liability because of the extraordinary circumstances they find themselves in. In the United Kingdom, however, in In re F (Mental Patient: Sterilisation) and R v Bournewood Community and Mental Health NHS Trust, ex parte L, the House of Lords broadened the defence so that it operated as a justification for treatment, detention and restraint outside of the emergency context. This paper outlines the distinction between necessity as an excuse and as a defence, and identifies a number of concerns with the latter formulation: problems of democracy, integrity, obedience, objectivity and safeguards. Australian courts are urged to reject the United Kingdom approach and retain an excuse-based defence, as the risks of permitting the essentially utilitarian model of necessity as a justification are too great.

Genome-wide association analysis identifies 13 new risk loci for schizophrenia

Schizophrenia is an idiopathic mental disorder with a heritable component and a substantial public health impact. We conducted a multi-stage genome-wide association study (GWAS) for schizophrenia beginning with a Swedish national sample (5,001 cases and 6,243 controls) followed by meta-Analysis with previous schizophrenia GWAS (8,832 cases and 12,067 controls) and finally by replication of SNPs in 168 genomic regions in independent samples (7,413 cases, 19,762 controls and 581 parent-offspring trios). We identified 22 loci associated at genome-wide significance; 13 of these are new, and 1 was previously implicated in bipolar disorder. Examination of candidate genes at these loci suggests the involvement of neuronal calcium signaling. We estimate that 8,300 independent, mostly common SNPs (95% credible interval of 6,300-10,200 SNPs) contribute to risk for schizophrenia and that these collectively account for at least 32% of the variance in liability. Common genetic variation has an important role in the etiology of schizophrenia, and larger studies will allow more detailed understanding of this disorder.

Australian Media Law [5th Edition]

Australian Media Law details and explains the complex case law, legislation and regulations governing media practice in areas as diverse as journalism, advertising, multimedia and broadcasting. It examines the issues affecting traditional forms of media such as television, radio, film and newspapers as well as for recent forms such as the internet, online forums and digital technology, in a clear and accessible format. New additions to the fifth edition include: - the implications of new anti-terrorism legislation for journalists; - developments in privacy law, including Law Reform recommendations for a statutory cause of action to protect personal privacy in Australia and the expanding privacy jurisprudence in the United Kingdom and New Zealand; - liability for defamation of internet search engines and service providers; - the High Court decision in Roadshow v iiNet and the position of internet service providers in relation to copyright infringement via their services; - new suppression order regimes; - statutory reforms providing journalists with a rebuttable presumption of non-disclosure when called upon to reveal their sources in a court of law; - recent developments regarding whether journalists can use electronic devices to collect and disseminate information about court proceedings; - contempt committed by jurors via social media; and an examination of recent decisions on defamation, confidentiality, vilification, copyright and contempt.

The ultimate edge: The case for planning media for sustaining space communities

Governments and intergovernmental organisations have long recognised that space communities – the ultimate ‘settlements at the edge’ – will exist one day and have based their first plans for these on another region ‘at the edge’, the Antarctic. United States President Eisenhower proposed to the United Nations in 1960 that the principles of the Antarctic Treaty be applied to outer space and celestial bodies (State Department, n.d.). Three years later the UN adopted the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space and in 1967 that became the Outer Space Treaty. According to the UN Office for Outer Space Affairs, ‘the Treaty was opened for signature by the three depository Governments (the Russian Federation, the United Kingdom and the United States of America) in January 1967, and it entered into force in October 1967’ (Office for Outer Space Affairs, n.d). The status of the treaty (at time of writing) was 89 signatories and 102 parties (Office for Disarmament Affairs, n.d.). Other related instruments include the Rescue Agreement, the Liability Convention, the Registration Convention and the Moon Agreement (Office for Outer Space Affairs, n.d.-a). Jumping to the present, a newsagency reported in July 2014 (Reuters, 2014) that the British Government had shortlisted eight aerodromes in its search for a potential base for the UK’s first spaceplane flights which Ministers want to happen by 2018 (UK Space Agency, 2014). The United States already has a spaceport, in New Mexico (Cokley, Rankin, Heinrich, & McAuliffe, 2013)...

Phoenix activity: Regulatory challenges and the law

Remedying the mischief of phoenix activity is of practical importance. The benefits include continued confidence in our economy, law that inspires best practice among directors, and law that is articulated in a manner such that penalties act as a sufficient deterrent and the regulatory system is able to detect offenders and bring them to account. Any further reforms must accommodate and tolerate legal phoenix activity. Phoenix activity pushes tolerance of entrepreneurial activity to its absolute limits. The wisest approach would be to front end the reforms so as to alleviate the considerable detection and enforcement burden upon regulatory bodies. There is little doubt that breach of the existing law is difficult and expensive to detect; and this is a significant burden when regulators have shrinking budgets and are rapidly losing feet on the ground. This front end approach may need to include restrictions on access to limited liability. The more limited liability is misused, the stronger the argument to limit access to limited liability. This paper proposes that such an approach is a legitimate next step for a robust and mature capitalist economy.

Accountability of insurers under s 54: Striking the balance between commerciality and consumer protection

Section 54 of the Insurance Contracts Act 1984 (Cth) continues to occupy a prominent position in insurance-related litigation. This section which imposes a concept of causation, or prejudice to the insurer, to restrict an insurer’s reliance upon contractual terms to avoid liability for particular claims, is often before the courts. This note focuses upon the recent High Court of Australia decision in Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33.

Insurance contract disclosure – an uncertain balance

This article canvasses recent case law adjudicating the uneasy disclosure balance between the interests of the insurer and the insured in the process of transacting an insurance contract. It examines also the consequences of non-disclosure and misrepresentation and whether the avowed legislative intent — that the liability of the insurer in respect of a claim is to be reduced to the amount that would place the insurer in the position it would have been had the non-disclosure or misrepresentation not occurred — is being achieved in practice. As there is no doubt as to who bears the onus of proof as to non-disclosure or misrepresentation it is surprising that insurers continue to flounder in this regard in relation to underwriting guidelines and adherence to them. The article reviews recent case law in this context and stresses that an insurer wishing to preserve its capacity to avoid liability on the basis that it would not have entered into a contract at all had the true situation been known to it must maintain detailed underwriting guidelines supported by consistent adherence to those guidelines. Recent case law also emphasises that the insurer must provide clear and cogent admissible evidence from appropriate personnel and officers of the company to discharge its onus.

Australian court holds Google is responsible for linking to defamatory website

The South Australian Supreme Court this week found that Google is legally responsible when its search results link to defamatory content on the web. In this long-running case, Dr Janice Duffy has been trying for more than six years to clear her name and remove links to defamatory material when people search for her using Google. The main culprit is the US based website Ripoff Reports, where people have posted negative reviews of Dr Duffy. Under United States law, defamation is very hard to prove, and US websites are not liable for comments made by their users. Since it was not possible to get harmful or abusive comments removed from the source, Dr Duffy instead asked Google to remove the links from its search results. Google removed some of these links, but only from its Australian domain (google.com.au), and it left many of them active. This latest court decision is a big win for Dr Duffy. The court found that once Google was alerted to the defamatory material, it was then under an obligation to act to censor its search results and prevent further harm to Dr Duffy’s reputation.

Strategically Pleading Intentional Torts in medical cases

The opportunities and challenges faced by litigants who strategically plead intentional torts are borne out by two recent medical cases. Both arose out of dental treatment. Dean v Phung established some key principles which were clarified in White v Johnston. Before considering those two cases it is worth examining the environment in which such intentional torts claims now exist. Following the Ipp Review of the Law of Negligence, non-uniform legislative changes to the law of negligence were introduced across Australia which have imposed limitations on liability and quantum of damages in cases where a person has been injured through the fault of another. While it seems that, given the limitation of the scope of the review and recommendations to negligently caused damage, the Ipp Review reforms were meant to be limited to injury resulting from negligent acts rather than intentional torts, the extent to which the civil liability legislation applies to intentional torts differs across Australia.

The changing face of conveyancing responsibility

In this note the authors examine two cases, one from Australia, the other from New Zealand, both of which explore the responsibility of legal practitioners engaged as professionals in the buying and selling of land. What is shown is that the allocation of risk and responsibility is constantly under scrutiny for those involved in the conveyancing process, something which the nascent Australian electronic conveyancing protocols will only heighten.

Copyright, fair use and the Australian Constitution

There has been much debate over recent years about whether Australian copyright law should adopt a fair use doctrine. In this chapter we argue by pointing to the historical record that the incorporation of the term 'copyrights' in the Australian Constitution embeds a notion of balance and fair use in Australian law and that this should be taken into account when interpreting the Australian Copyright Act 1968. English case law in the 18th and 19th centuries developed a principle that copyright infringement did not occur where a person had made a fair use of a work. Fair use was generally established where the defendant had made a productive use that did more than alter the original work for the purpose of evading liability, and where the defendant had made an original contribution to the resulting work. Additionally, fairness was shown by a use that did not supersede or prejudice the market for the original work. At the time of including the copyright power in the Constitution, the UK Parliament’s understanding of “copyrights” included the notion of fair use as it had been developed in U.K. precedent. In this chapter we argue that the work “copyrights” in the Australia Constitution takes its definition from copyright in 1900 and as it has evolved since. Importantly, the word “copyrights” is infused with a particular meaning that incorporates the principle of copyright balance. The constitutional notion of copyright, therefore, is not that of an unlimited power to prevent all copying. Rather, copyright distinguishes between infringing copying and non-infringing copying and grants to the copyright owner only the power to control the former. Non-infringing copying includes well-accepted limitations on the copyright owner’s rights, including the copying of ideas, the copying of public domain works and the copying of insubstantial parts of copyrighted works. In this chapter we argue that non-infringing copying also includes copying to make a fair use of a work. The sections that distinguish infringing copying from non-infringing copying in the Copyright Act 1968 are sections 36(1) and 101(1), which define infringement as the doing, without licence, of an “act comprised in the copyright”. An infringing copy is an act comprised the copyright, whereas a non-infringing copy is not. We argue that space for fair uses of copyrighted works is built into the Copyright Act 1968 through these sections, because a fair use will not produce an infringing copy and so is not an act comprised in the copyright.

Swimming against the tide? Australian labour regulation and the fissured workplace

In The Fissured Workplace, David Weil dissects the ways in which ostensibly ‘large’ American businesses have come to shed direct employees and instead source their labour needs through a ‘complicated network of smaller business units’. As he notes, this has increased the profitability of these ‘lead’ businesses, at the expense of those who (ultimately) work for them: Wage setting and supervision shift from core businesses to a myriad of organizations, each operating under the rigorous standards of lead businesses but facing fierce competitive pressures. Although lead businesses set demanding goals and standards, and often detailed work practice requirements for subsidiary companies, the actual liability, oversight, and supervision of the workforce become the problem of one or more other organizations. And by replacing a direct employment relationship with a fissured workplace, employment itself becomes more precarious, with risk shifted onto smaller employers and individual workers, who are often cast in the role of independent businesses in their own right.

Defamation proceedings - Limitation of Actions Act 1974

In Noonan v MacLennan [2010] QCA 50 the Queensland Court of Appeal considered for the first time the provision permitting extension of the limitation period for a defamation action under s32A of the Limitation of Actions Act 1974.

Estimation and partitioning of polygenic variation captured by common SNPs for Alzheimer's disease, multiple sclerosis and endometriosis

Common diseases such as endometriosis (ED), Alzheimer's disease (AD) and multiple sclerosis (MS) account for a significant proportion of the health care burden in many countries. Genome-wide association studies (GWASs) for these diseases have identified a number of individual genetic variants contributing to the risk of those diseases. However, the effect size for most variants is small and collectively the known variants explain only a small proportion of the estimated heritability. We used a linear mixed model to fit all single nucleotide polymorphisms (SNPs) simultaneously, and estimated genetic variances on the liability scale using SNPs from GWASs in unrelated individuals for these three diseases. For each of the three diseases, case and control samples were not all genotyped in the same laboratory. We demonstrate that a careful analysis can obtain robust estimates, but also that insufficient quality control (QC) of SNPs can lead to spurious results and that too stringent QC is likely to remove real genetic signals. Our estimates show that common SNPs on commercially available genotyping chips capture significant variation contributing to liability for all three diseases. The estimated proportion of total variation tagged by all SNPs was 0.26 (SE 0.04) for ED, 0.24 (SE 0.03) for AD and 0.30 (SE 0.03) for MS. Further, we partitioned the genetic variance explained into five categories by a minor allele frequency (MAF), by chromosomes and gene annotation. We provide strong evidence that a substantial proportion of variation in liability is explained by common SNPs, and thereby give insights into the genetic architecture of the diseases.