Behaviour disorders and teacher negligence

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’, the duty of care become more onerous, and hence harder for teachers to meet. As a consequence, teachers are more likely to face 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 required by the increasing numbers of disordered pupils, places teachers in an ever more difficult legal position.

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.

Managing hostile environments : journalists and media workers : learning to survive the world's difficult, remote and hostile environments

The aim of this research is to examine the changing nature of risks that face journalists and media workers in the world's difficult, remote and hostile environments, and consider the 'adequacy' of managing hostile environment safety courses that some media organizations require prior to foreign assignments. The study utilizes several creative works and contributions to this area of analysis, which includes a documentary film production, course contributions, an emergency reference handbook, security and incident management reviews and a template for evacuation and contingency planning. The research acknowledges that employers have a 'duty of care' to personnel working in these environments, identifies the necessity for pre-deployment training and support, and provides a solution for organizations that wish to initiate a comprehensive framework to advise, monitor, protect and respond to incidents. Finally, it explores the possible development of a unique and holistic service to facilitate proactive and responsive support, in the form of a new profession of 'Editorial Logistics Officer' or 'Editorial Safety Officer' within media organizations. This area of research is vitally important to the profession, and the intended contribution is to introduce a simple and cost-efficient framework for media organizations that desire to implement pre-deployment training and field-support – as these programs save lives. The complete proactive and responsive services may be several years from implementation. However, this study demonstrates that the facilitation of Managing Hostile Environment (MHE) courses should be the minimum professional standard. These courses have saved lives in the past and they provide journalists with the tools to "cover the story, and not become the story."

Utmost good faith in insurance : reform overdue?

Considerable attention has been devoted to the duty or doctrine of utmost good faith in the academic literature and in the courts. This attention ranges from an analysis of the precise legal basis for the duty through a consideration of the continuing nature of that duty in the post-contract environment.It is quite clear that all contracts of insurance are subject to this duty of utmost good faith. What is less clear and certain are the incidents attendant upon such a duty and the scope of the obligations that such a duty imposes. This article examines the relative positions that have been reached in England and Australia and concludes with some recommendations for legislative reform to this area of the law.

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.

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]).

Do warnings deter rather than produce more sophisticated malingering?

Following Youngjohn, Lees-Haley, and Binder's (1999) comment on Johnson and Lesniak-Karpiak's (1997) study that warnings lead to more subtle malingering, researchers have sought to better understand warning effects. However, such studies have been largely atheoretical and may have confounded warning and coaching. This study examined the effect on malingering of a warning that was based on criminological-sociological concepts derived from the rational choice model of deterrence theory. A total of 78 participants were randomly assigned to a control group, an unwarned simulator group, or one of two warned simulator groups. The warning groups comprised low- and high-level conditions depending on warning intensity. Simulator participants received no coaching about how to fake tests. Outcome variables were scores derived from the Test of Memory Malingering and Wechsler Memory Scale-III. When the rate of malingering was compared across the four groups, a high-level warning effect was found such that warned participants were significantly less likely to exaggerate than unwarned simulators. In an exploratory follow-up analysis, the warned groups were divided into those who reported malingering and those who did not report malingering, and the performance of these groups was compared to that of unwarned simulators and controls. Using this approach, results showed that participants who were deterred from malingering by warning performed no worse than controls. However, on a small number of tests, self-reported malingerers in the low-level warning group appeared less impaired than unwarned simulators. This pattern was not observed in the high-level warning condition. Although cautious interpretation of findings is necessitated by the exploratory nature of some analyses, overall results suggest that using a carefully designed warning may be useful for reducing the rate of malingering. The combination of some noteworthy effect sizes, despite low power and the small size of some groups, suggests that further investigation of the effects of warnings needs to continue to determine their effect more fully.

Remembering beliefs

Optimal decision-making requires us to accurately pinpoint the basis of our thoughts, e.g. whether they originate from our memory or our imagination. This paper argues that the phenomenal qualities of our subjective experience provide permissible evidence to revise beliefs, particularly as it pertains to memory. I look to the source monitoring literature to reconcile circumstances where mnemic beliefs and mnemic qualia conflict. By separating the experience of remembering from biological facts of memory, unusual cases make sense, such as memory qualia without memory (e.g. déjà vu, false memories) or a failure to have memory qualia with memory (e.g. functional amnesia, unintentional plagiarism). I argue that a pragmatic, probabilistic approach to belief revision is a way to rationally incorporate information from conscious experience, whilst acknowledging its inherent difficulties as an epistemic source. I conclude with a Bayesian defense of source monitoring based on C.I. Lewis’ coherence argument for memorial knowledge.

Death by Drowning : Gary Bryson's Turtle [A Review]

Accused of being autobiographical, as many debut novels often are, Turtle, upon first reading and further prying, does read as a story wrenched out of Gary Bryson’s own life. In a recent interview with Mandy Sayer, however, he was quick to deny all sorts of archetypal allegations. “Any resemblance to turtles living or dead”, Bryson explained, “is entirely coincidental”. Regardless of the many parallels that align author with protagonist—both were born and raised in a grey-skied Glasgow, both grew up in self-described dysfunctional families, and both returned to the colourless city to attend their mothers’ funerals—the narrative combines bruising black comedy with moments of magic realism. The result is an unlikely but often surprising concoction of twists and turns, each of which mixes the fallibility of memory with the slippery nature of truth. This playfulness between the material world and its metaphorical counterpart raises questions, not only about the curse that poisons its characters, but about the ethical implications of blurring fact and fiction...

Mental harm, rescuers and the Civil Liability Act 2002 (NSW)

At common law, a duty of care may be owed to a claimant who suffers nervous shock or pure mental harm due to witnessing, or hearing about, physical injury caused to another due to a defendant’s negligence. “Pure mental harm” is the ‘impairment of a person’s mental condition’ that is not suffered as a consequence of any other kind of personal injury to them. However, as many accidents have the potential to create a wide circle of mental suffering to bystanders, family members or others not physically injured themselves, it has traditionally been ‘thought impolitic that everybody so affected should be able to recover damages from the tortfeasor.’ ‘To allow such extended recovery would stretch liability too far.’ Nevertheless, whilst adopting a restrictive approach to liability, the common law courts have recognised that a defendant might owe a duty in relation to the pure mental harm suffered by one who foreseeably attends an accident scene to rescue another from a situation created by the defendant’s negligence.

Restructuring instructional material in vocational education to enhance learning

This paper reviews research findings regarding the design of instructional material and its effectiveness in facilitating learning. Firstly, a discussion of memory processes engaged in when learning from different types of instructional material is presented. Secondly, referring to empirical research, the implications of the above discussion for vocational education instruction, and in particular, for engineering graphics, CNC programming and learning to use equipment from manuals are presented.

Keeping House : a novel and novel companion

The creative work of this study is a novel-length work of literary fiction called Keeping House (published as Grace's Table, by University of Queensland Press, April 2014). Grace has not had twelve people at her table for a long time. Hers isn't the kind of family who share regular Sunday meals. As Grace prepares the feast, she reflects on her life, her marriage and her friendships. When the three generations of her family come together, simmering tensions from the past threaten to boil over. The one thing that no one can talk about is the one thing that no one can forget. Grace's Table is a moving and often funny novel using food as a language to explore the power of memory and the family rituals that define us. The exegetical component of this study does not adhere to traditional research pedagogies. Instead, it follows the model of what the literature describes as fictocriticism. It is the intention that the exegesis be read as a hybrid genre; one that combines creative practice and theory and blurs the boundaries between philosophy and fiction. In offering itself as an alternative to the exegetical canon it provides a model for the multiplicity of knowledge production suited to the discipline of practice-led research. The exegesis mirrors structural elements of the creative work by inviting twelve guests into the domestic space of the novel to share a meal. The guests, chosen for their diverse thinking, enable examination of the various agents of power involved in the delivery of food. Their ideas cross genders, ages and time periods; their motivations and opinions often collide. Some are more concerned with the spatial politics of where food is consumed, others with its actual preparation and consumption. Each, however, provides a series of creative reflective conversations throughout the meal which help to answer the research question: How can disempowered women take authority within their domestic space? Michel de Certeau must defend his "operational tactics" or "art of the weak" 1 as a means by which women can subvert the colonisation of their domestic space against Michel Foucault's ideas about the functions of a "disciplinary apparatus". 2 Erving Goffman argues that the success of de Certeau's "tactics" depends upon his theories of "performance" and "masquerade" 3; a claim de Certeau refutes. Doreen Massey and the author combine forces in arguing for space, time and politics to be seen as interconnected, non-static and often contested. The author calls for identity, or sense of self, to be considered a further dimension which impacts on the function of spatial models. Yu-Fi Tuan speaks of the intimacy of kitchens; Gaston Bachelard the power of daydreams; and Jean Anthelme Brillat-Savarin gives the reader a taste of the nourishing arts. Roland Barthes forces the author to reconsider her function as a writer and her understanding of the reader's relationship with a text. Fictional characters from two texts have a place at the table – Marian from The Edible Woman by Margaret Atwood 4 and Lilian from Lilian's Story by Kate Grenville. 5 Each explores how they successfully subverted expectations of their gender. The author interprets and applies elements of the conversations to support Grace's tactics in the novel as well as those related to her own creative research practice. Grace serves her guests, reflecting on what is said and how it relates to her story. Over coffee, the two come together to examine what each has learned.

Causing economic harm to property developers : damages for starting an incurably bad appeal?

A recent decision of the Queensland Court of Appeal involved an unusual statement of claim made on behalf of the developer of a proposed resort in Port Douglas. The decision is The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475. The issue The defendant had objected to a development application of the plaintiff developer and lodged an appeal in the Planning and Environment Court against the council decision granting a development permit. The main issue in the Planning and Environment Court was whether the site coverage of the proposed resort was excessive. In a separate action (the subject matter of the present appeal), the plaintiff developer claimed damages for ‘negligence’ alleging that the defendant had breached a duty of care not to appeal without properly or reasonably assessing whether the development qualified for a permit given that the resort qualified for the maximum allowable site coverage. It was alleged that the appeal lodged by the defendant in the Planning and Environment Court had no reasonable prospects of success and that any reasonable person properly advised would know, or ought reasonably to have known, that to be so. The defendant had been “put on notice” that the plaintiff would incur loss of $10,000 for every day there was a delay in starting construction of the resort. The claim made by the developer required the court to consider those circumstances where a person may lawfully and deliberately cause economic harm to another. Was a duty of care owed by the defendant for negligent conduct of litigation that caused economic loss to the plaintiff?

Mortgagee sale obligations tightened

The enactment of the Property Law (Mortgagor Protection) Amendment Act 2008 (Qld), means that the obligations of a mortgagee exercising power of sale or a receiver selling have been substantially tightened in Queensland. Background As explained in the explanatory notes accompanying the legislation, with current global economic and financial circumstances, there were concerns about the position of mortgagors when mortgagees exercised their powers of sale. The objective of the amending legislation was to protect the interests of mortgagors by strengthening the statutory provisions relating to the duty of the mortgagee exercising power of sale to take reasonable care to ensure the property is sold at market value. The amending legislation was urgently passed without any consultation process.

School policy responses to cyberbullying : an Australian legal perspective

The use of electronic means of contact to support repeated aggressive behaviour by an individual or group, that is intended to harm others – or ‘cyberbullying’ as it is now known – is increasingly becoming a problem for modern students, teachers, parents and schools. Increasingly victims of face to face bullying are looking to the law as a means of recourse, not only against bullies but also school authorities who have the legal responsibility to provide a safe environment for learning. It is likely that victims of cyberbullying will be inclined to do the same. This article examines a survey of the anti-bullying policies of a small sample of Australian schools to gauge their readiness to respond to the challenge of cyberbullying, particularly in the context of the potential liability they may face. It then uses that examination as a basis for identifying implications for the future design of school anti-bullying policies.