Medical negligence, causation and 'exceptional cases' under the civil liability legislation

Under the civil liability legislation enacted in most Australian jurisdictions, factual causation will be established if, on the balance of probabilities, the claimant can prove that the defendant's negligence was 'a necessary condition of the occurrence of the [claimant's] harm'. Causation will then be satisfied by showing that the harm would not have occurred 'but for' the defendant's breach of their duty of care. However, in an exceptional or appropriate case, sub-section 2 of the legislation provides that if the 'but for' test is not met, factual causation may instead be determined in accordance with other 'established principles'. In such a case, 'the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed' on the negligent party.

Corporate governance and law reform in Japan: From the lost decade to the end of history?

Japan is in the midst of massive law reform. Mired in ongoing recession since the early 1990s, Japan has been implementing a new regulatory blueprint to kickstart a sluggish economy through structural change. A key element to this reform process is a rethink of corporate governance and its stakeholder relations. With a patchwork of legislative initiatives in areas as diverse as corporate law, finance, labour relations, consumer protection, public administration and civil justice, this new model is beginning to take shape. But to what extent does this model represent a break from the past? Some commentators are breathlessly predicting the "Americanisation" of Japanese law. They see the triumph of Western-style capitalism - the "End of History", to borrow the words of Francis Fukuyama - with its emphasis on market-based, arms-length transactions. Others are more cautious, advancing the view that there new reforms are merely "creative twists" on what is a uniquely (although slowly evolving) strand of Japanese capitalism. This paper takes issue with both interpretations. It argues that the new reforms merely follow Japan's long tradition of 'adopting and adapting' foreign models to suit domestic purposes. They are neither the wholesale importation of "Anglo-Saxon" regulatory principles nor a thin veneer over a 'uniquely unique' form of Confucian cultural capitalism. Rather, they represent a specific and largely political solution (conservative reformism) to a current economic problem (recession). The larger themes of this paper are 'change' and 'continuity'. 'Change' suggests evolution to something identifiable; 'continuity' suggests adhering to an existing state of affairs. Although notionally opposites, 'change' and 'continuity' have something in common - they both suggest some form of predictability and coherence in regulatory reform. Our paper, by contrast, submits that Japanese corporate governance reform or, indeed, law reform more generally in Japan, is context-specific, multi-layered (with different dimensions not necessarily pulling all in the same direction for example, in relations with key outside suppliers), and therefore more random or 'chaotic'.

What’s law got to do with it?: Medical negligence, causation and the use of policy

In a medical negligence context, and under the causation provisions enacted pursuant to Civil Liability Legislation in most Australian jurisdictions, the normative concept of “scope of liability” requires a consideration of whether or not and why a medical practitioner should be responsible for a patient’s harm. As such, it places a limit on the extent to which practitioners are deemed liable for a breach of the duty of care owed by them, in circumstances where a legal factual connection between that breach and the causation of a patient’s harm has already been shown. It has been said that a determination of causation requires ‘the identification and articulation of an evaluative judgement by reference to “the purposes and policy of the relevant part of the law”’: Wallace v Kam (2013) 297 ALR 383, 388. Accordingly, one of the normative factors falling within scope of liability is an examination of the content and purpose of the rule or duty of care violated – that is, its underlying policy and whether this supports an attribution of legal responsibility upon a practitioner. In this context, and with reference to recent jurisprudence, this paper considers: the policy relevant to a practitioner’s duty of care in each of the areas of diagnosis, treatment and advice; how this has been used to determine an appropriate scope of liability for the purpose of the causation inquiry in medical negligence claims; and whether such an approach is problematic for medical standards or decision-making.

Submission on NSW Attorney-General's Discussion Paper on Amendment of Limitation of Actions Act 1969 to remove time limit for civil claims for child abuse

The New South Wales Attorney-General and Justice Policy Division released a Discussion Paper about reform of the Limitation of Actions Act 1969. The key question was whether and how to amend the statute to better provide access to justice for civil claimants in child abuse cases. This submission draws on published literature and multidisciplinary research to support the Discussion Paper's Option A, namely, to abolish the time limit for civil claims for injuries in criminal child abuse cases, and for this to be made retrospective.

Civil Procedure — Commentary and Materials, 6th Edition

This book provides a comprehensive analysis of the practical and theoretical issues encountered in Australian civil procedure, including alternative dispute resolution. Each chapter features in-depth questions and notes together with lists of further reading to aid understanding of the issue. It also examines and discusses each substantive and procedural step in the trial process. Topics include jurisdiction of a court to consider a matter, alternative dispute resolution, limitations of actions, commencing proceedings, group proceedings, pleading, summary disposition, gathering evidence, affidavits, interlocutory procedures, settlement, trial and appeal, costs Each of the state, territory and federal procedures is covered.

Copyright law and mash-ups: A policy paper

This report provides an analysis of the cultural, policy and legal implications of ‘mash-ups’. This study provides a short history of mash-ups, explaining how the current ‘remix culture’ builds upon a range of creative antecedents and cultural traditions, which valorised appropriation, quotation, and transformation. It provides modern examples of mash-ups, such as sound recordings, musical works, film and artistic works, focusing on works seen on You Tube and other online applications. In particular, it considers - * Literary mash-ups of canonical texts, including Pride and Prejudice and Zombies, The Wind Done Gone, After the Rain, and 60 Years Later; * Artistic mash-ups, highlighting the Obama Hope poster, the ‘Column’ case, and the competition for extending famous album covers; * Geographical mash-ups, most notably, the Google Australia bushfires map; * Musical mash-ups, such as The Grey Album and the work of Girl Talk; * Cinematic mash-ups, including remixes of There Will Be Blood and The Downfall; and This survey provides an analysis of why mash-up culture is valuable. It highlights the range of aesthetic, political, comic, and commercial impulses behind the creation and the dissemination of mash-ups. This report highlights the tensions between copyright law and mash-ups in particular cultural sectors. Second, this report emphasizes the importance of civil society institutions in promoting and defending mash-ups in both copyright litigation and policy debates. It provides a study of key organisations – including: * The Fair Use Project; * The Organization for Transformative Works; * Public Knowledge; * The Electronic Frontier Foundation; and * The Chilling Effects Clearinghouse This report suggests that much can be learnt from this network of organisations in the United States. There is a dearth of comparable legal clinics, advocacy groups, and creative institutions in Australia. As a result, the public interest values of copyright law have only received weak, incidental support from defendant companies – such as Network Ten and IceTV – with other copyright agendas. Third, this report canvasses a succinct model for legislative reform in respect of copyright law and mash-ups. It highlights: * The extent to which mash-ups are ‘tolerated uses’; * The conflicting judicial precedents on substantiality in Australia and the United States; * The debate over copyright exceptions relating to mash-ups and remixes; * The use of the take-down and notice system under the safe harbours regime by copyright owners in respect of mash-ups; * The impact of technological protection measures on mash-ups and remixes; * The possibility of statutory licensing in respect of mash-ups; * The use of Creative Commons licences; * The impact of moral rights protection upon mash-ups; * The interaction between economic and moral rights under copyright law; and * Questions of copyright law, freedom of expression, and political mash-ups.

The Trans-Pacific Partnership, Copyright Law and Education

There is much concern across the Pacific rim about the impact of the Trans-Pacific Partnership (TPP) upon public education. The secretive trade agreement involves a dozen nations across the Pacific, including Australia, New Zealand, Canada and the United States, and Indonesia may soon join. Although the text was finalised at the Atlanta talks in October 2015, the Agreement has not yet been made public. (The NTEU has joined with other unions and civil society organisations in calling for the agreement to be revealed to facilitate public debate before any decisions are made by Parliament.) So whilst we cannot examine all the text that may impact on public educations, WikiLeaks has published the final version of the Intellectual Property Chapter of the TPP. The Intellectual Property Chapter of the TPP alone, with its copyright term extension, limits on copyright exceptions, and enforcement measures, will have a significant impact for educators and public education.

Civil Procedure

This text provides a summary of Australian procedural law to its bare essence to assist students to rapidly come to grips with the main principles, theories and reality of civil litigation. The LexisNexis Study Guide series is designed to assist students in learning the foundations for effective, systematic exam preparation and revision. In each chapter of LexisNexis Study Guide - Civil Procedure, Stephen Colbran, Roger Douglas, Sheryl Jackson and Molly Townes O'Brien clearly identify and explain the pertinent and often difficult topics within civil procedure. The most important and recent cases are summarised to consolidate practical understanding of the theoretical concepts involved in civil procedure.

Child sexual abuse and access to justice for civil claims: Time to reform the Limitation of Actions Act 1974 (Qld)

In 2015, Victoria passed laws removing the time limit in which a survivor of child sexual abuse can commence a civil claim for personal injury. The law applies also to physical abuse, and to psychological injury arising from those forms of abuse. In 2016, New South Wales made almost identical legal reforms. These reforms were partly motivated by the recommendations of inquiries into institutional child abuse. Of particular relevance is that the Australian Royal Commission Into Institutional Responses to Child Sexual Abuse recommended in 2015 that all States and Territories remove their time limits for civil claims. This presentation explores the problems with standard time limits when applied to child sexual abuse cases (whether occurring within or beyond institutions), the scientific, ethical and legal justifications for lifting the time limits, and solutions for future law reform.

Engaging Students in the Implementation of Criterion Referenced Assessment in First Year Law

The Queensland University of Technology (QUT) University Academic Board approved a new QUT Assessment Policy in September 2003, which requires a criterion-referenced approach as opposed to a norm-referenced approach to assessment across the university(QUT,MOPP,2003). In 2004, the QUT Law School embarked upon a process of awareness raising about criterion-referenced assessment amongst staff and from 2004 – 2005 staggered the implementation of criterion-referenced assessment in all first year core undergraduate law units. This paper will briefly discuss the benefits and potential pitfalls of criterion referenced assessment and the context for implementing it in the first year law program, report on student’s feedback on the introduction of criterion referenced assessment and the strategies adopted in 2005 to engage students more fully in criterion referenced assessment processes to enhance their learning outcomes.