Fraudulent insurance claims : recent legal developments

Insurance fraud continues to be a major problem worldwide. This article will canvass recent legal developments in relation to selected issues and matters of particular concern to the insurance industry. This article is confined to fraudulent claims. Fraud may arise at various points in the insurance relationship, including initial fraud on placement and fraudulent breach of contract by the assured. Fraud at the outset by the assured is treated differently from innocent or negligent conduct. "Fraud" in the context of this paper embraces all claims where an insured intednds to deceive an insurer by getting out i money to which the insured knew he had no right. This article will examine fraudulent insurance claims.

Evolutionary algorithms for sustainable building design

This approach to sustainable design explores the possibility of creating an architectural design process which can iteratively produce optimised and sustainable design solutions. Driven by an evolution process based on genetic algorithms, the system allows the designer to “design the building design generator” rather than to “designs the building”. The design concept is abstracted into a digital design schema, which allows transfer of the human creative vision into the rational language of a computer. The schema is then elaborated into the use of genetic algorithms to evolve innovative, performative and sustainable design solutions. The prioritisation of the project’s constraints and the subsequent design solutions synthesised during design generation are expected to resolve most of the major conflicts in the evaluation and optimisation phases. Mosques are used as the example building typology to ground the research activity. The spatial organisations of various mosque typologies are graphically represented by adjacency constraints between spaces. Each configuration is represented by a planar graph which is then translated into a non-orthogonal dual graph and fed into the genetic algorithm system with fixed constraints and expected performance criteria set to govern evolution. The resultant Hierarchical Evolutionary Algorithmic Design System is developed by linking the evaluation process with environmental assessment tools to rank the candidate designs. The proposed system generates the concept, the seed, and the schema, and has environmental performance as one of the main criteria in driving optimisation.

Recent cases on intoxication

Intoxication of a plaintiff raises many issues in a negligence action – duty of care, breach of duty, causation and the defence of contributory negligence. Recently intoxication has been examined by the Full Court of Tasmania in relation to duty and breach and by the New South Wales Court of Appeal in respect of causation and contributory negligence.

Golf can be dangerous : be forewarned!

In Pollard v Trude [2008] QSC 119 (20 May 2008) the plaintiff claimed for personal injuries suffered when he was struck by a golf ball during the course of a tournament. The plaintiff was a member of a group of four, playing in a two-day tournament at Indooroopilly Golf Club. All four players had teed off at the second hole of the course and when the defendant took his second shot; his ball struck one of the trees bordering the fairway and deflected, hitting the plaintiff who was waiting to take his third stroke. As the ball was in flight, the defendant had called out "Watch out Errol", or words to that effect, to the plaintiff. The plaintiff suffered injury to his eye, leaving his vision impaired. The plaintiff sued in negligence, alleging that by failing to shout "fore" as is traditionally done in golf, the defendant had failed to warn the appellant and this was a breach of their duty. The claim in negligence was dismissed by the Queensland Supreme Court, holding that there had been no breach of the duty.

High Court changes position on standard of care of learner drivers

Since the High Court decision of Cook v Cook (1986) 162 CLR 376, a person who voluntarily undertakes to instruct a learner driver of a motor vehicle is owed a lower standard of care than that owed to other road users. The standard of care was still expressed to be objective; however, it took into account the inexperience of the learner driver. Therefore, a person instructing a learner driver was owed a duty of care the standard being that of a reasonable learner driver. This ‘special relationship’ was said to exist because of the passenger’s knowledge of the driver’s inexperience and lack of skill. On 28 August 2008 the High Court handed down its decision in Imbree v McNeilly [2008] HCA 40, overruling Cook v Cook.

Narratives of mitigation : sentencing Indigenous criminal defendants in South Australia’s Higher Courts

In their statistical analyses of higher court sentencing in South Australia, Jeffries and Bond (2009) found evidence that Indigenous offenders were treated more leniently than non-Indigenous offenders, when they appeared before the court under similar numerical circumstances. Using a sample of narratives for criminal defendants convicted in South Australia’s higher courts, the current article extends Jeffries and Bond’s (2009) prior statistical work by drawing on the ‘focal concerns’ approach to establish whether, and in what ways, Indigeneity comes to exert a mitigating influence over sentencing. Results show that the sentencing stories of Indigenous and non-Indigenous offenders differed in ways that may have reduced assessments of blameworthiness and risk for Indigenous defendants. In addition, judges highlighted a number of Indigenous-specific constraints that potentially could result in imprisonment being construed as an overly harsh and costly sentence for Indigenous offenders.

Managing illegal street racing and associated risky driving behaviour : An Australian perspective

Illegal street racing has received increased attention in recent years from the media, governments and road safety professionals. At the same time, there has been a shift from treating illegal street racing as a public nuisance issue to a road safety problem in Australia, as this behaviour now attracts a penalty of increased periods of vehicle impoundment leading to permanent vehicle forfeiture for repeat offences. This severe vehicle sanction is typically applied to repeat drink driving offenders and drivers who breach suspensions and disqualifications in North American jurisdictions, but was first introduced in Australia to deal with illegal street racing and associated risky driving behaviours, grouped together under the label of ‘hooning’ in Australian jurisdictions. This paper describes how Australian jurisdictions are dealing with this issue. The research described in this paper drew on multiple data sources to explore illegal street racing and the management of this issue in Australia. First, the paper reviews the relevant legislation in each Australian state to describe the cross-jurisdictional similarities and differences in approaches. It also describes some results from focus group discussions and a quantitative online survey with drivers who self-report engaging in illegal street racing and associated behaviours in Queensland, Australia. It was found that approaches to dealing with illegal street racing and associated risky driving behaviours in each Australian state are similar, with increasing periods of vehicle impoundment (leading to vehicle forfeiture) applied to repeat hooning offences within prescribed periods. Participants in the focus groups and respondents to the questionnaire generally felt these penalty periods were severe, with perceptions of severity increasing with the length of the penalty period. It was concluded that there is a need for each jurisdiction to objectively evaluate the effectiveness of their vehicle impoundment and forfeiture programs for hooning. These evaluations should compare the relative costs of these programs (e.g., enforcement, unrecovered towing and storage fees, and court costs) to the observed benefits (e.g., reduction in target behaviours, reduction in community complaints, and reduction in the number and severity of associated crashes).

Identifying child sexual abuse within school contexts : policy problems and solutions, and a landmark case

As a strategy to identify child sexual abuse, most Australian States and Territories have enacted legislation requiring teachers to report suspected cases. Some Australian State and non-State educational authorities have also created policy-based obligations to report suspected child sexual abuse. Significantly, these can be wider than non-existent or limited legislative duties, and therefore are a crucial element of the effort to identify sexual abuse. Yet, no research has explored the existence and nature of these policy-based duties. The first purpose of this paper is to report the results of a three-State study into policy-based reporting duties in State and non-State schools in Australia. In an extraordinary coincidence, while conducting the study, a case of failure to comply with reporting policy occurred with tragic consequences. This led to a rare example in Australia (and one of only a few worldwide) of a professional being prosecuted for failure to comply with a legislative duty. It also led to disciplinary proceedings against school staff. The second purpose of this paper is to describe this case and connect it with findings from our policy analysis.

Government, citizenship and cultural policy : expertise and participation in Australian media policy

The study of institutions and policy processes in the formation of culture have been a major concern of the "cultural policy debate", which has been a major debate in Australian cultural studies in the 1990s (Bennett 1992a; Cunningham 1992; O'Regan 1993; cf. McGuigan 1996). Bennett (1992) argues that culture in modern societies is defined less by a distinct series of artistic and intellectual practices, the ways of life of distinctive communities or social groups, or as a system for the structuring of meaning in a society, but rather in terms of "the specificity of the governmental tasks and programmes in which those practices come to be inscribed." (Bennett 1992a: 397) Within such a framework, policy becomes "not... an optional add-on but... central to the definition and constitution of culture" (Bennett 1992a: 397). This understanding of culture as "intrinsically governmental" has in turn been linked to an increasingly strategic role for discourses of citizenship as a basis for the engagement of cultural studies intellectuals with the political sphere...

Should funds invest in socially responsible investments during downturns?

Purpose: This paper investigates whether Socially Responsible Investment (SRI) is less sensitive to market downturns than conventional investments; the legal implications for fund managers and trustees; and possible legislative reforms to allow conventional funds more scope to invest in SRI. ----- ----- Design/methodology/approach: The paper uses the market model to estimate betas over the past 15 years for SRI funds and conventional investment funds during economic downturns, as distinct from during more ‘normal’ (non-recessionary) economic times. ----- ----- Findings: The beta risk of SRI, both in Australia and internationally, increases more than that of conventional investment during economic downturns. Traditional fund managers and trustees in Australia are therefore likely to breach their fiduciary duties if they go long - or remain long - in SRI funds during economic downturns, unless relevant legislation is reformed. ----- ----- Research limitations/implications: The methodology assumes that alpha and beta in the market model are constant. This is the subject of ongoing research. Second, it categorises the state of the market into ‘normal’ economic conditions and downturns using dummy variables. More sophisticated techniques could be used in future research. ----- ----- Practical implications: The current law would prevent conventional funds from investing in SRI. If SRI is viewed as socially desirable, useful legislative reforms could include explicitly overriding the common law to allow conventional funds to invest in SRI; introducing a 150% tax deduction or investment allowance for SRI; and allowing SRI sub-funds to obtain Deductible Gift Recipient status from the Australian Tax Office and other taxation authorities. ----- ----- Originality/value: The accurate assessment of risk in SRIs is an area which, despite its serious legal implications, is yet to be subjected to rigorous empirical investigation. Keywords - SRI, market model, GARCH, trust fund, fiduciary duties, market downturns, Australia.

Elimination of dengue by community programs using Mesocyclops(Copepoda) against Aedes aegypti in central Vietnam

From September 2000 to June 2003, a community-based program for dengue control using local predacious copepods of the genus Mesocyclops was conducted in three rural communes in the central Vietnam provinces of Quang Nam, Quang Ngai, and Khanh Hoa. Post-project, three subsequent entomologic surveys were conducted until March 2004. The number of households and residents in the communes were 5,913 and 27,167, respectively, and dengue notification rates for these communes from 1996 were as high as 2,418.5 per 100,000 persons. Following knowledge, attitude, and practice evaluations, surveys of water storage containers indicated that Mesocyclops spp. already occurred in 3-17% and that large tanks up to 2,000 liters, 130-300-liter jars, wells, and some 220-liter metal drums were the most productive habitats for Aedes aegypti. With technical support, the programs were driven by communal management committees, health collaborators, schoolteachers, and pupils. From quantitative estimates of the standing crop of third and fourth instars from 100 households, Ae. aegypti were reduced by approximately 90% by year 1, 92.3-98.6% by year 2, and Ae. aegypti immature forms had been eliminated from two of three communes by June 2003. Similarly, from resting adult collections from 100 households, densities were reduced to 0-1 per commune. By March 2004, two communes with no larvae had small numbers but the third was negative; one adult was collected in each of two communes while one became negative. Absolute estimates of third and fourth instars at the three intervention communes and one left untreated had significant correlations (P = 0.009-< 0.001) with numbers of adults aspirated from inside houses on each of 15 survey periods. By year 1, the incidence of dengue disease in the treated communes was reduced by 76.7% compared with non-intervention communes within the same districts, and no dengue was evident in 2002 and 2003, compared with 112.8 and 14.4 cases per 100,000 at district level. Since we had similar success in northern Vietnam from 1998 to 2000, this study demonstrates that this control model is broadly acceptable and achievable at community level but vigilance is required post-project to prevent reinfestation.

Standardisation and patent ambush : potential liability under Australian competition law

This article examines the problem of patent ambush in standard setting, where patent owners are sometimes able to capture industry standards in order to secure monopoly power and windfall profits. Because standardisation generally introduces high switching costs, patent ambush can impose significant costs on downstream manufacturers and consumers and drastically reduce the efficiency gains of standardisation.This article considers how Australian competition law is likely to apply to patent ambush both in the development of a standard (through misrepresenting the existence of an essential patent) and after a standard is implemented (through refusing to license an essential patented technology either at all or on reasonable and non-discriminatory (RAND) terms). This article suggests that non-disclosure of patent interests is unlikely to restrained by Part IV of the Trade Practices Act (TPA), and refusals to license are only likely to be restrained if the refusal involves leveraging or exclusive dealing. By contrast, Standard Setting Organisations (SSOs) which seek to limit this behaviour through private ordering may face considerable scrutiny under the new cartel provisions of the TPA. This article concludes that SSOs may be best advised to implement administrative measures to prevent patent hold-up, such as reviewing which patents are essential for the implementation of a standard, asking patent holders to make their licence conditions public to promote transparency, and establishing forums where patent licensees can complain about licence terms that they consider to be unreasonable or discriminatory. Additionally, the ACCC may play a role in authorising SSO policies that could otherwise breach the new cartel provisions, but which have the practical effect of promoting competition in the standards setting environment.

Order supported by law : the enforcement of norms in virtual communities

As online social spaces continue to grow in importance, the complex relationship between users and the private providers of the platforms continues to raise increasingly difficult questions about legitimacy in online governance. This article examines two issues that go to the core of egitimate governance in online communities: how are rules enforced and punishments imposed, and how should the law support legitimate governance and protect participants from the illegitimate exercise of power? Because the rules of online communities are generally ultimately backed by contractual terms of service, the imposition of punishment for the breach of internal rules exists in a difficult conceptual gap between criminal law and the predominantly compensatory remedies of contractual doctrine. When theorists have addressed the need for the rules of virtual communities to be enforced, a dichotomy has generally emerged between the appropriate role of criminal law for 'real' crimes, and the private, internal resolution of 'virtual' or 'fantasy' crimes. In this structure, the punitive effect of internal measures is downplayed and the harm that can be caused to participants by internal sanctions is systemically undervalued.

Data and process requirements for product recall coordination

When an organisation becomes aware that one of its products may pose a safety risk to customers, it must take appropriate action as soon as possible or it can be held liable. The ability to automatically trace potentially dangerous goods through the supply chain would thus help organisations fulfill their legal obligations in a timely and effective manner. Furthermore, product recall legislation requires manufacturers to separately notify various government agencies, the health department and the public about recall incidents. This duplication of effort and paperwork can introduce errors and data inconsistencies. In this paper, we examine traceability and notification requirements in the product recall domain from two perspectives: the activities carried out during the manufacturing and recall processes and the data collected during the enactment of these processes. We then propose a workflow-based coordination framework to support these data and process requirements.

Assessing the concordance of health and child protection data for 'maltreated' and 'unintentionally injured' children

Objectives: To quantify the concordance of hospital child maltreatment data with child protection service (CPS) records and identify factors associated with linkage. Methods: Multivariable logistic regression analysis was conducted following retrospective medical record review and database linkage of 884 child records from 20 hospitals and the CPS in Queensland, Australia. Results: Nearly all children with hospital assigned maltreatment codes (93.1%) had a CPS record. Of these, 85.1% had a recent notification. 29% of the linked maltreatment group (n=113) were not known to CPS prior to the hospital presentation. Almost 1/3 of children with unintentional injury hospital codes were known to CPS. Just over 24% of the linked unintentional injury group (n=34) were not known to CPS prior to the hospital presentation but became known during or after discharge from hospital. These estimates are higher than the 2006/07 annual rate of 2.39% of children being notified to CPS. Rural children were more likely to link to CPS, and children were over 3 times more likely to link if the index injury documentation included additional diagnoses or factors affecting their health. Conclusions: The system for referring maltreatment cases to CPS is generally efficient, although up to 1 in 15 children had codes for maltreatment but could not be linked to CPS data. The high proportion of children with unintentional injury codes who linked to CPS suggests clinicians and hospital-based child protection staff should be supported by further education and training to ensure children at risk are being detected by the child protection system.