Wrongful birth : assessment of damages in 2013

More than 10 years have passed since the High Court of Australia confirmed the recoverability of damages for the cost of raising a child, in the well-known decision in Cattanach v Melchior. Yet a number of aspects of the assessment of such “wrongful birth” damages had not been the subject of a comprehensive court ruling. The recent decision in Waller v James was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases. However, given a finding on causation adverse to the plaintiffs, the trial judge held that it was unnecessary to determine the quantum of damages. Justice Hislop did, however, make some comments in relation to the assessment of damages. This article focuses mostly on the argued damages issues relating to the costs of raising the child and the trial judge’s comments regarding the same. The Waller v James claim was issued before the enactment of the Health Care Liability Act 2001 (NSW) and the Civil Liability Act 2002 (NSW). Although the case was therefore decided according to the “common law”, as explained below, his Honour’s comments may be of relevance to more recent claims governed by the civil liability legislation in New South Wales, Queensland and South Australia.

The conceptualisation, sensitivity and measurement of holding costs and other selected elements impacting housing affordability (Literature review and research methodology for confirmation of PhD candidature)

It is widely held that strong relationships exist between housing, economic status, and well being. This is exemplified by widespread housing stock surpluses in many countries which threaten to destabilise numerous aspects related to individuals and community. However, the position of housing demand and supply is not consistent. The Australian position provides a distinct contrast whereby seemingly inexorable housing demand generally remains a critical issue affecting the socio-economic landscape. Underpinned by high levels of immigration, and further buoyed by sustained historically low interest rates, increasing income levels, and increased government assistance for first home buyers, this strong housing demand ensures elements related to housing affordability continue to gain prominence. A significant, but less visible factor impacting housing affordability – particularly new housing development – relates to holding costs. These costs are in many ways “hidden” and cannot always be easily identified. Although it is only one contributor, the nature and extent of its impact requires elucidation. In its simplest form, it commences with a calculation of the interest or opportunity cost of land holding. However, there is significantly more complexity for major new developments - particularly greenfield property development. Preliminary analysis conducted by the author suggests that even small shifts in primary factors impacting holding costs can appreciably affect housing affordability – and notably, to a greater extent than commonly held. Even so, their importance and perceived high level impact can be gauged from the unprecedented level of attention policy makers have given them over recent years. This may be evidenced by the embedding of specific strategies to address burgeoning holding costs (and particularly those cost savings associated with streamlining regulatory assessment) within statutory instruments such as the Queensland Housing Affordability Strategy, and the South East Queensland Regional Plan. However, several key issues require investigation. Firstly, the computation and methodology behind the calculation of holding costs varies widely. In fact, it is not only variable, but in some instances completely ignored. Secondly, some ambiguity exists in terms of the inclusion of various elements of holding costs, thereby affecting the assessment of their relative contribution. Perhaps this may in part be explained by their nature: such costs are not always immediately apparent. Some forms of holding costs are not as visible as the more tangible cost items associated with greenfield development such as regulatory fees, government taxes, acquisition costs, selling fees, commissions and others. Holding costs are also more difficult to evaluate since for the most part they must be ultimately assessed over time in an ever-changing environment, based on their strong relationship with opportunity cost which is in turn dependant, inter alia, upon prevailing inflation and / or interest rates. By extending research in the general area of housing affordability, this thesis seeks to provide a more detailed investigation of those elements related to holding costs, and in so doing determine the size of their impact specifically on the end user. This will involve the development of soundly based economic and econometric models which seek to clarify the componentry impacts of holding costs. Ultimately, there are significant policy implications in relation to the framework used in Australian jurisdictions that promote, retain, or otherwise maximise, the opportunities for affordable housing.

FDR and victims of family violence: Ensuring a safe process and outcomes

Family dispute resolution (FDR) is a positive first-stop process for family law matters, particularly those relating to disputes about children. FDR provides the parties with flexibility within a positive, structured and facilitated framework for what are often difficult and emotional negotiations. However, there are a range of issues that arise for victims of family violence in FDR that can make it a dangerous and unsafe process for them unless appropriate precautions are taken. This article discusses the nature of FDR and identifies the many positive aspects of it for women participants. The article then considers the nature and dynamic of family violence in order to contextualise the discussion that follows regarding concerns for the safety of participants in the FDR process. Finally, it offers some suggestions about how Australia could approach FDR differently to make it safer for victims of family violence.

The institutional limits to, and possibility of, understanding young people diagnosed with 'mental disorders', within inclusive teacher-student relationships

A persistent pattern of exclusion of young people with ‘mental disorders’ from school systems, despite the best intentions of schools and teachers, has prompted a call for a more reflexive understanding of their behaviours. This thesis, by describing how institutionally recognised ways of understanding can result in otherwise avoidable moral collisions and exclusion, produces new insights into the nature and processes of understanding required to promote inclusion. These insights were produced through an intensive qualitative examination of a violent classroom episode, identifying key points in the interaction that could make the difference between misrecognition and recognition, turning exclusion into inclusion.

Insurance and trust : lessons from the Christchurch Cathedral

This article examines important insurance and trust law issues that may confront trustees charged with the governance and protection of unique properties with broad community and heritage significance. Often trustee roles are assumed by community leaders without full appreciation of the potential difficulties and consequences when unforeseen circumstances arise. Three recent New Zealand court decisions in relation to the deconstruction and repair of the Christchurch Cathedral and to the interim construction of a transitional"cardboard Cathedral" highlight how difficult - and legally exposed - the role of trustee can be. The Cathedral cases go to the heart of defining the core purpose for which a Trust is created and examine the scope of discretion in fulfilling this charge its Trustees carry. Arising in the wake of the devastating Christchurch earthquakes, the Cathedral's Trustees were called upon to consider the best directions forward for a criplled and dangerous building subject to potential demolition, the wellbeing of the Cathedral's direct community, and the broader heritage and identity factors that this 'heart' of Christchurch represented. In the context of a seemingly grossly underinsured material damage cover - and faced with broader losses across the Diocese's holdings - the Trustees found that their sense of mission failed to gel with that of a community-based heritage buildings preservation trust. The High Court had to consider how monies received under the material damage policy could be applied by the Trustee in deconstructing, reinstating or repairing the Cathedral and if monies could be partly deployed to create an interim solution in the former of a transitional cathedral - all this in the context of the site-specific purpose of the Cathedral trust. The cases emphasise further the need to assess professionally the nature and quantum of cover effected to protect against various risks. In addition, in the case of historic or unusual buildings extra care must be exercised to take account additional costs associated with reinstatement so as to substantially retain the character and intrinsic value of such properties.

Mandatory Reporting Laws and Identification of Child Abuse and Neglect: Consideration of Differential Maltreatment Types, and a Cross-Jurisdictional Analysis of Child Sexual Abuse Reports

Mandatory reporting laws have been created in many jurisdictions as a way of identifying cases of severe child maltreatment on the basis that cases will otherwise remain hidden. These laws usually apply to all four maltreatment types. Other jurisdictions have narrower approaches supplemented by differential response systems, and others still have chosen not to enact mandatory reporting laws for any type of maltreatment. In scholarly research and normative debates about mandatory reporting laws and their effects, the four major forms of child maltreatment—physical abuse, sexual abuse, emotional abuse, and neglect—are often grouped together as if they are homogenous in nature, cause, and consequence. Yet, the heterogeneity of maltreatment types, and different reporting practices regarding them, must be acknowledged and explored when considering what legal and policy frameworks are best suited to identify and respond to cases. A related question which is often conjectured upon but seldom empirically explored, is whether reporting laws make a difference in case identification. This article first considers different types of child abuse and neglect, before exploring the nature and operation of mandatory reporting laws in different contexts. It then posits a differentiation thesis, arguing that different patterns of reporting between both reporter groups and maltreatment types must be acknowledged and analysed, and should inform discussions and assessments of optimal approaches in law, policy and practice. Finally, to contribute to the evidence base required to inform discussion, this article conducts an empirical cross-jurisdictional comparison of the reporting and identification of child sexual abuse in jurisdictions with and withoutmandatory reporting, and concludes that mandatory reporting laws appear to be associated with better case identification.

Carcinogenicity and genotoxicity of ethylene oxide : new aspects and recent advances

Long-term inhalation studies in rodents have presented unequivocal evidence of experimental carcinogenicity of ethylene oxide, based on the formation of malignant tumors at multiple sites. However, despite a considerable body of epidemiological data only limited evidence has been obtained of its carcinogenicity in humans. Ethylene oxide is not only an important exogenous toxicant, but it is also formed from ethylene as a biological precursor. Ethylene is a normal body constituent; its endogenous formation is evidenced by exhalation in rats and in humans. Consequently, ethylene oxide must also be regarded as a physiological compound. The most abundant DNA adduct of ethylene oxide is 7-(2-hydroxyethyl)guanine (HOEtG). Open questions are the nature and role of tissue-specific factors in ethylene oxide carcinogenesis and the physiological and quantitative role of DNA repair mechanisms. The detection of remarkable individual differences in the susceptibility of humans has promoted research into genetic factors that influence the metabolism of ethylene oxide. With this background it appears that current PBPK models for trans-species extrapolation of ethylene oxide toxicity need to be refined further. For a cancer risk assessment at low levels of DNA damage, exposure-related adducts must be discussed in relation to background DNA damage as well as to inter- and intraindividual variability. In rats, subacute ethylene oxide exposures on the order of 1 ppm (1.83 mg/m3) cause DNA adduct levels (HOEtG) of the same magnitude as produced by endogenous ethylene oxide. Based on very recent studies the endogenous background levels of HOEtG in DNA of humans are comparable to those that are produced in rodents by repetitive exogenous ethylene oxide exposures of about 10 ppm (18.3 mg/m3). Experimentally, ethylene oxide has revealed only weak mutagenic effects in vivo, which are confined to higher doses. It has been concluded that long-term human occupational exposure to low airborne concentrations to ethylene oxide, at or below current occupational exposure limits of 1 ppm (1.83 mg/m3), would not produce unacceptable increased genotoxic risks. However, critical questions remain that need further discussions relating to the coherence of animal and human data of experimental data in vitro vs. in vivo and to species-specific dynamics of DNA lesions.

Relationships between user experience and intuitiveness of visual and physical interactions

This paper investigates the effects of experience on the intuitiveness of physical and visual interactions performed by airport security screeners. Using portable eye tracking glasses, 40 security screeners were observed in the field as they performed search, examination and interface interactions during airport security x-ray screening. Data from semi structured interviews was used to further explore the nature of visual and physical interactions. Results show there are positive relationships between experience and the intuitiveness of visual and physical interactions performed by security screeners. As experience is gained, security screeners are found to perform search, examination and interface interactions more intuitively. In addition to experience, results suggest that intuitiveness is affected by the nature and modality of activities performed. This inference was made based on the dominant processing styles associated with search and examination activities. The paper concludes by discussing the implications that this research has for the design of visual and physical interfaces. We recommend designing interfaces that build on users’ already established intuitive processes, and that reduce the cognitive load incurred during transitions between visual and physical interactions.

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 role of nature-based experiences in the development and maintenance of wellness

Wellness is now seen as central to redefining the National Health agenda. There is growing evidence that contact with nature and physical activity in nature has considerable positive effects on human health. At the most basic level humanity is reliant on the natural world for resources such as air and water. However, a growing body of research is finding that beyond this fundamental relationship exposure to the non-human natural world can also positively enhance perceptions of physiological, emotional, psychological and spiritual health in ways that cannot be satisfied by alternate means. Theoretical explanations for this have posited that non-human nature might 1) restore mental fatigue, 2) trigger deep reflections, 3) provide an opportunity for nurturing and 4) rekindle innate connections. In this paper the authors show how human wellness is strongly connected to their relationship with the natural world. This paper points to how non-human nature could be better utilised for enhancing human health and wellness.

Assessment of damages for wrongful birth and consolidation in advance care directives

The recent decision of Waller v James involved a claim by the plaintiff parents for damages for wrongful birth against the defendant doctor, Dr James, a gynaecologist with a practice in infertility and IVF procedures, who had been consulted by the plaintiffs. The second plaintiff, Mr Waller suffered an inherited anti-thrombin deficiency (ATD), a condition which results in a propensity for the blood to clot, at least in adults. Dr James subsequently recommended IVF treatment. The first plaintiff, Mrs Waller became pregnant after the first cycle of IVF treatment. Her son Keeden was born on 10 August 2000 with a genetic anti-thrombin deficiency. Keeden was released from hospital on 14 August 2000. However, he was brought back to the hospital the next day with cerebral thrombosis (CSVT). As a result of the thrombosis, he suffered permanent brain damage, cerebral palsy and related disabilities. The plaintiffs alleged that the defendant was in breach of contract and his common law duty of care to the plaintiffs in failing to inform them, or cause them to be informed, of the hereditary aspects of ATD. They further alleged that, had they been properly informed, they would not have proceeded to conceive a child using the male plaintiff’s sperm and therefore avoided the harm that had befallen them. The plaintiffs claimed damages to compensate them for their losses, including psychiatric and physical injuries and the costs of having, raising and caring for Keeden. The defendant was held to be not liable in negligence by Justice Hislop of the Supreme Court of New South Wales because a finding was made on medical causation which was adverse to the plaintiffs claim.

Integrated plasma-aided nanofabrication facility: Operation, parameters, and assembly of quantum structures and functional nanomaterials

The development, operation, and applications of two configurations of an integrated plasma-aided nanofabrication facility (IPANF) comprising low-frequency inductively coupled plasma-assisted, low-pressure, multiple-target RF magnetron sputtering plasma source, are reported. The two configurations of the plasma source have different arrangements of the RF inductive coil: a conventional external flat spiral "pancake" coil and an in-house developed internal antenna comprising two orthogonal RF current sheets. The internal antenna configuration generates a "unidirectional" RF current that deeply penetrates into the plasma bulk and results in an excellent uniformity of the plasma over large areas and volumes. The IPANF has been employed for various applications, including low-temperature plasma-enhanced chemical vapor deposition of vertically aligned single-crystalline carbon nanotips, growth of ultra-high aspect ratio semiconductor nanowires, assembly of optoelectronically important Si, SiC, and Al1-xInxN quantum dots, and plasma-based synthesis of bioactive hydroxyapatite for orthopedic implants.

Assessment of damages for defamation of business and personal reputation

An award of damages for defamation is to provide reparation for harm to a plaintiff’s reputation for the publication of defamatory material, compensate for any personal distress caused and vindicate the plaintiff’s reputation.1 Assessing such damages is recognised as a difficult task and perhaps the Queensland courts face further difficulties as there are few awards of damages for defamation in the state. This was pointed out in the recent decision of the Queensland Court of Appeal, Cerutti & Anor v Crestside Pty Ltd & Anor.2 This decision examined in detail the principles of assessing damages for defamation.