Behaviour disorders and the negligent teacher

The purpose of this paper is to examine the legal implications of the continuing rise in the number of school children diagnosed with behaviour disorders. Not only are teachers now subject to a dense grid of legal regulation, they are also increasingly vulnerable to actions in tort. It will be argued here that as more and more children are labelled ‘disordered’, then the concomitant duty of care requirements for teachers becomes more onerous. As a consequence, teachers are less likely to be able to defend themselves against claims of negligence. It is concluded that while the schooling system needs to retain a healthy scepticism about each new pathologising disorder that seeks special status for its sufferers, it also needs to provide greater training and resources for teachers regarding disorder management. It is also concluded that recent changes to negligence law regarding the issue of ‘reasonable foreseeability’ within breach of duty of care, may not be as significant as might have been hoped by the teaching community. Indeed, the elevated standard of care, as required by increasing numbers of disordered pupils, place teachers in an ever more difficult legal position.

Early objective detection of lymphoedema

The aetiology of secondary lymphoedema seems to be multifactorial, with acquired abnormalities as well as pre-existing conditions being contributory factors. Many characteristics bear inconsistent relationships to lymphoedema risk, and the few that are consistently associated with an increased risk of developing the condition, do not alone distinguish the at-risk population. Further, our current prevention and management recommendations are not backed by strong evidence. Consequently, there remains much to be learned about who gets it, how can it be prevented and how can we best treat it. Nonetheless, it is clear that lymphoedema is associated with adverse side effects, which have a profound impact on daily life, and that preliminary evidence suggests that early detection may lead to more effective treatment and lack of treatment may lead to progression. These represent important reasons as to why lymphoedema deserves clinical attention. However, several pragmatic issues must be considered when discussing whether a routine objective measure of lymphoedema could be integrated among the standard clinical care of those undertaking treatment for cancers known to be associated with the development of lymphoedema.

Role of exercise in the prevention and management of lymphedema after breast cancer

Swelling or lymphedema of the limb, trunk, or breast is considered the most problematic and dreaded concern after treatment for breast cancer and has significant physical, psychological, and social ramifications. Conservative incidence estimates suggest that 20%-30% of breast cancer survivors will experience lymphedema, with the majority of cases (up to 80%) occurring within the first year after surgery. The etiology of secondary lymphedema seems to be multifactorial, with acquired abnormalities as well as preexisting conditions being contributory factors.

Application of text mining in analysing road crashes for road asset management

Traffic safety is a major concern world-wide. It is in both the sociological and economic interests of society that attempts should be made to identify the major and multiple contributory factors to those road crashes. This paper presents a text mining based method to better understand the contextual relationships inherent in road crashes. By examining and analyzing the crash report data in Queensland from year 2004 and year 2005, this paper identifies and reports the major and multiple contributory factors to those crashes. The outcome of this study will support road asset management in reducing road crashes.

Voter behaviour and constitutional change in Australia since 1967

Australian Constitutional referendums have been part of the Australian political system since federation. Up to the year 1999 (the time of the last referendum in Australia), constitutional change in Australia does not have a good history of acceptance. Since 1901, there have been 44 proposed constitutional changes with eight gaining the required acceptance according to section 128 of the Australian Constitution. In the modern era since 1967, there have been 20 proposals over seven referendum votes for a total of four changes. Over this same period, there have been 13 federal general elections which have realised change in government just five times. This research examines the electoral behaviour of Australian voters from 1967 to 1999 for each referendum. Party identification has long been a key indicator in general election voting. This research considers whether the dominant theory of voter behaviour in general elections (the Michigan Model) provides a plausible explanation for voting in Australian referendums. In order to explain electoral behaviour in each referendum, this research has utilised available data from the Australian Electoral Commission, the 1996 Australian Bureau of Statistics Census data, and the 1999 Australian Constitutional Referendum Study. This data has provided the necessary variables required to measure the impact of the Michigan Model of voter behaviour. Measurements have been conducted using bivariate and multivariate analyses. Each referendum provides an overview of the events at the time of the referendum as well as the =yes‘ and =no‘ cases at the time each referendum was initiated. Results from this research provide support for the Michigan Model of voter behaviour in Australian referendum voting. This research concludes that party identification, as a key variable of the Michigan Model, shows that voters continue to take their cues for voting from the political party they identify with in Australian referendums. However, the outcome of Australian referendums clearly shows that partisanship is only one of a number of contributory factors in constitutional referendums.

Factors influencing oncology nurses' approaches to accommodating cultural needs in palliative care

Aims and objectives: The purpose of this study is to explore the social construction of cultural issues in palliative care amongst oncology nurses. ---------- Background: Australia is a nation composed of people from different cultural origins with diverse linguistic, spiritual, religious and social backgrounds. The challenge of working with an increasingly culturally diverse population is a common theme expressed by many healthcare professionals from a variety of countries. ---------- Design: Grounded theory was used to investigate the processes by which nurses provide nursing care to cancer patients from diverse cultural backgrounds. ---------- Methods: Semi-structured interviews with seven Australian oncology nurses provided the data for the study; the data was analysed using grounded theory data analysis techniques. ---------- Results: The core category emerging from the study was that of accommodating cultural needs. This paper focuses on describing the series of subcategories that were identified as factors which could influence the process by which nurses would accommodate cultural needs. These factors included nurses' views and understandings of culture and cultural mores, their philosophy of cultural care, nurses' previous experiences with people from other cultures and organisational approaches to culture and cultural care. ---------- Conclusions: This study demonstrated that previous experiences with people from other cultures and organisational approaches to culture and cultural care often influenced nurses' views and understandings of culture and cultural mores and their beliefs, attitudes and behaviours in providing cultural care. ---------- Relevance to clinical practice: It is imperative to appreciate how nurses' experiences with people from other cultures can be recognised and built upon or, if necessary, challenged. Furthermore, nurses' cultural competence and experiences with people from other cultures need to be further investigated in clinical practice.

Liability of principal contractor for independent subcontractor considered by the High Court

Case note of Leighton Contractors Pty Ltd v Fox (2009) 258 ALR 673 ----- In Leighton Contractors Pty Ltd v Fox (2009) 83 ALJR 1086 ; 258 ALR 673 the High Court considered the liability of a principal contractor for the negligence of independent subcontractors on a building site. In its decision, the court considered the nature and the scope of the duty owed by principals to independent contractors.

Foreseeability of pure economic loss and causation

In Bonny Glen Pty Ltd v Country Energy [2009] NSWCA 26 (24 February 2009) the New South Wales Court of Appeal held that the pure economic loss suffered by the appellant was recoverable. However, rather than arguments as to whether the appellant was vulnerable and a member of an ascertainable class, whether the respondent had knowledge of the risk to the appellant and was in a position of control and considerations as to indeterminate liability as in Perre v Apand Pty Ltd (1999) 198 CLR 180, the arguments raised related to the foreseeability of the loss and causation.

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.

15 year old volens to BMX riding risks

The Queensland Court of Appeal recently heard a case that raised the defence of volenti on fit injuria. By a majority of 2:1 the court held in Leyden v Caboolture Shire Council [2007] QCA 134 (20 April 2007) that the defence of volenti was established and defeated the action in negligence for damages for personal injury. The facts of the case were quite simple. The plaintiff was 15 years old when he was injured at the Bluebell Park which was controlled and managed by the Caboolture Shire Council (the defendant). The park had a BMX track – built and maintained by the defendant. At trial it was held that although the defendant owed a duty of care to entrants, a duty was not owed to the plaintiff. The judge found that the plaintiff was different to other entrants who used facilities provided by a council in a public park. The plaintiff was not relying upon the defendant to provide a BMX track with jumps that were reasonably safe as the evidence was that the track was regularly altered by third parties and the plaintiff knew that. Therefore it was reasoned that the plaintiff was relying upon the ability of the third parties who modified the jump and his own ability to use it, not the ability of the defendant to provide a reasonably safe track (at [10]). The trial judge also held that if a duty was owed, the defence of volenti applied so as to defeat the claim for damages. This was based upon the evidence that the plaintiff knew of the modification of the jump by third parties and knew of the risk. It was held that the plaintiff ‘had the appropriate subjective appreciation of the risk’ (at [11]).

A new approach to assessing Malaysian contractor satisfaction levels

The extent of poor project outcomes is a recurring issue for construction industries worldwide. One of the main causes of these and project failure seems to be the inability of contractors to provide a high level of service quality to the project team. In Malaysia, design failures have also been identified as a further contributory factor. To overcome this, different types of subjective performance measurement have been progressively developed. These approaches are typically concerned with client satisfaction, customer satisfaction, home buyer satisfaction and occupant satisfaction, but very seldom consider contractor satisfaction. This paper examines the implications of this, and what is involved in developing satisfaction measures based on contractor perception instead of the typical sole concern with client performance. As a result, other attributes such as participants’ performance, business performance, project performance, external factors and contractor characteristics are also examined. Several potential attributes are derived from interviews among Malaysian contractors, namely: performance (direct attributes) and contractor characteristics (indirect attributes) that possibly influence contractor satisfaction levels. These attributes are then developed to improve the existing conceptual framework. The developed framework is expected to help the project team in performing projects more efficiently, maintaining service quality and improving relationships between participants. In addition, the findings of the paper should assist contractors enhance competitiveness, improve their image and create more job opportunities in the future.

High Court decision on duty owed by licensee to patron

In a previous column of Queensland Lawyer,1 the case of Scott v CAL No 14 Pty Ltd (No 2) (2009) 256 ALR 512 was discussed. Special leave to appeal against the decision of the Full Court of the Supreme Court of Tasmania was granted and on 10 November 2009 the High Court handed down its decision.

Health law in Australia

Health Law in Australia is the first book to deal with health law on a comprehensive national basis. In a field of law that is becoming increasingly important and where the demand for expertise is rapidly expanding, Health Law in Australia takes a logical, structured approach to an examination of the law in all Australian jurisdictions. By covering all the major areas in this diverse field of law, Health Law in Australia enhances the understanding of the discipline as a whole. Beginning with an exploration of the general principles of health law, including chapters on “Medical Negligence”, “Children and Consent”, and “Confidentiality, Privacy, and Access to Health Records”, the book goes on to consider beginning-of-life and end-of-life issues before concluding with chapters on emerging areas in health law, such as biotechnology and medical research. The contributing authors include national leaders in the field who are specialists in these areas of health law and who can therefore reveal to readers the results of their research. Health Law in Australia has been written for those with a legal background and is essential reading for undergraduate law students, postgraduate law students, researchers and scholars in the disciplines of law, health and medicine, as well as legal practitioners, government departments and bodies in the health area, and private health providers.

Everyday life and the edges of existence : wrongs with no name or the wrong name?

Actions for wrongful life, as they have come unfortunately to be styled, encompass various types of claim. These include claims for alleged negligence after conception, those based on negligent advice or diagnosis prior to conception concerning possible effects of treatment given to the child's mother, contraception or sterilisation, or genetic disability. This distinguishes such claims from those for so called wrongful birth, which are claims by parents for the cost of raising either a healthy or a disabled child where the unplanned birth imposes costs on the parents as a result of clinical negligence. Two of the more controversial cases to have reached the High Court of Australia which are if interest to us here in the past decade are Cattanach v Melchior where the court, by a narrow majority (McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon dissenting) acknowledged recovery for wrongful birth. In the second joined appeals of Harriton v Stephens and Waller v James; Waller v Hoolahan the court overwhelmingly precluded a ‘wrongful life’ claim (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ; Kirby J dissenting). Both cases raised issues around the sanctity and value of life and the nature of harm and the assessment of damages, and this brief note affords us the opportunity to consider the way in which the ‘life as legal loss’ arguments were treated by the various judges in both cases.