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]).

Good nutrition for good surgery: clinical and quality of life outcomes

Undernutrition is common in patients admitted for surgery and is often unrecognised, untreated and worsens in hospital. The complex synergistic relationship between nutritional status and the physiological responses to surgery puts patients at high nutritional risk. There are clear prospective associations between inadequate nutritional status and the risk of poorer outcomes for surgical patients, including infection, complications and length of stay. However, practically and ethically evidence that nutritional interventions can significantly reduce these poor outcomes is difficult to obtain. Nevertheless health professionals have a duty of care to ensure our patients are properly fed, by whatever means, to meet their physiological requirements.

Faculty and employee ownership of inventions in Australia

A recent decision by the Australian High Court means that, unless faculty are bound by an assignment or intellectual property (IP) policy, they may own inventions resulting from their research. Thirty years after its introduction, the US Bayh-Dole Act, which vests ownership of employee inventions in the employer university or research organization, has become a model for commercialization around the world. In Australia, despite recommendations that a Bayh-Dole style regime be adopted, the recent decision in University of Western Australia (UWA) v Gray1 has moved the default legal position in a diametrically opposite direction. A key focus of the debate was whether faculty’s duty to carry out research also encompasses a duty to invent. Late last year, the Full Federal Court confirmed a lower court ruling that it does not, and this year the High Court refused leave to appeal (denied certiorari). Thus, Gray stands as Australia’s most faculty-friendly authority to date.

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.

Ions in motor vehicle exhaust and their dispersion near busy roads

Measurements in the exhaust plume of a petrol-driven motor car showed that molecular cluster ions of both signs were present in approximately equal amounts. The emission rate increased sharply with engine speed while the charge symmetry remained unchanged. Measurements at the kerbside of nine motorways and five city roads showed that the mean total cluster ion concentration near city roads (603 cm-3) was about one-half of that near motorways (1211 cm-3) and about twice as high as that in the urban background (269 cm-3). Both positive and negative ion concentrations near a motorway showed a significant linear increase with traffic density (R2=0.3 at p<0.05) and correlated well with each other in real time (R2=0.87 at p<0.01). Heavy duty diesel vehicles comprised the main source of ions near busy roads. Measurements were conducted as a function of downwind distance from two motorways carrying around 120-150 vehicles per minute. Total traffic-related cluster ion concentrations decreased rapidly with distance, falling by one-half from the closest approach of 2m to 5m of the kerb. Measured concentrations decreased to background at about 15m from the kerb when the wind speed was 1.3 m s-1, this distance being greater at higher wind speed. The number and net charge concentrations of aerosol particles were also measured. Unlike particles that were carried downwind to distances of a few hundred metres, cluster ions emitted by motor vehicles were not present at more than a few tens of metres from the road.

A comprehensive condition monitoring of modern railway

The demand for high quality rail services in the twenty-first century has put an ever increasing demand on all rail operators. In order to meet the expectation of their patrons, the maintenance regime of railway systems has to be tightened up, the track conditions have to be well looked after, the rolling stock must be designed to withstand heavy duty. In short, in an ideal world where resources are unlimited, one needs to implement a very rigorous inspection regime in order to take care of the modem needs of a railway system [1]. If cost were not an issue, the maintenance engineers could inspect the train body by the most up-to-date techniques such as ultra-sound examination, x-ray inspection, magnetic particle inspection, etc. on a regular basis. However it is inconceivable to have such a perfect maintenance regime in any commercial railway. Likewise, it is impossible to have a perfect rolling stock which can weather all the heavy duties experienced in a modem railway. Hence it is essential that some condition monitoring schemes are devised to pick up potential defects which could manifest into safety hazards. This paper introduces an innovative condition monitoring system for track profile and, together with an instrumented car to carry out surveillance of the track, will provide a comprehensive railway condition monitoring system which is free from the usual difficulty of electromagnetic compatibility issues in a typical railway environment

Workplace Equality in International Organizations: A Way Forward

In this contribution, I am interested in how discrimination issues are manifested in employment relations in the United Nations (UN), a public forum to all states political leaders to advance their concerns, the World Bank, a financial organization that promotes economic development, mainly in developing countries, and the Consultative Group on International Agricultural Research (CGIAR), the eldest and largest global public program of the World Bank with a strategic network of diverse stakeholders that harnesses the best in science to produce more and better food, reduce poverty and sustain environments. Considering the immunity and privileges granted to international organizations, what are the current available legal procedures, at the national or international level, for workplace equality? How accountable and transparent are they, based on the practice of these organizations? Can discrimination biases that go beyond the known individual-based discrimination claims be identified? If so, how can they be challenged and changed? Based of the special position of international civil servants in international organizations and the duty to protect their fundamental rights, I claim that the limitation of opportunity by discriminatory biases and the psychic burden on the individual staff member, on daily basis, qualify for a workplace wrong and call for independent and impartial legal procedures that would ensure due process and fair treatment.

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.

Vulnerability, insurance and policy: The learner driver's standard of care

In Cook v Cook the Australian High Court held that the standard of reasonable care owed by a learner driver to an instructor, conscious of the driver’s lack of experience, was lower than that owed to other passengers and road users. Recently, in Imbree v McNeilly, the High Court declined to follow this principle, concluding that the driver’s status or relationship with the claimant should no longer influence or alter the standard of care owed. The decision therefore provides an opportunity to re-examine the rationale and policy behind current jurisprudence governing the standard of care owed by learner drivers. In doing so, this article considers the principles relevant to determining the standard and Imbree’s implications for other areas of tort law and claimant v defendant relationships. It argues that Imbree was influenced by changing judicial perceptions concerning the vulnerability of driving instructors and the relevance of insurance to tortious liability.

Continuous passive motion applied to whole joints stimulates chondrocyte blosynthesis of PRG4

Continuous passive motion (CPM) is currently a part of patient rehabilitation regimens after a variety of orthopedic surgical procedures. While CPM can enhance the joint healing process, the direct effects of CPM on cartilage metabolism remain unknown. Recent in vivo and in vitro observations suggest that mechanical stimuli can regulate articular cartilage metabolism of proteoglycan 4 (PRG4), a putative lubricating and chondroprotective molecule found in synovial fluid and at the articular cartilage surface. ----- ----- Objectives: (1) Determine the topographical variation in intrinsic cartilage PRG4 secretion. (2) Apply a CPM device to whole joints in bioreactors and assess effects of CPM on PRG4 biosynthesis.----- ----- Methods: A bioreactor was developed to apply CPM to bovine stifle joints in vitro. Effects of 24 h of CPM on PRG4 biosynthesis were determined.----- ----- Results: PRG4 secretion rate varied markedly over the joint surface. Rehabilitative joint motion applied in the form of CPM regulated PRG4 biosynthesis, in a manner dependent on the duty cycle of cartilage sliding against opposing tissues. Specifically, in certain regions of the femoral condyle that were continuously or intermittently sliding against meniscus and tibial cartilage during CPM, chondrocyte PRG4 synthesis was higher with CPM than without.----- ----- Conclusions: Rehabilitative joint motion, applied in the form of CPM, stimulates chondrocyte PRG4 metabolism. The stimulation of PRG4 synthesis is one mechanism by which CPM may benefit cartilage and joint health in post-operative rehabilitation. (C) 2006 Osteoarthritis Research Society International. Published by Elsevier Ltd. All rights reserved.

Regulating for Sustainability : Property Issues

All Australian governments recognize the need to ensure that land and natural resources are used sustainably. In this context, ‘resources’ includes natural resources found on land such as trees and other vegetation, fauna, soil and minerals, and cultural resources found on land such as archaeological sites and artefacts. Regulators use a wide range of techniques to promote sustainability. To achieve their objectives, they may, for example, create economic incentives through bounties, grants and subsidies, encourage the development of self-regulatory codes, or enter into agreements with landowners specifying how the land is to be managed. A common way of regulating is by making administrative orders, determinations or decisions under powers given to regulators by Acts of Parliament (statutes) or by regulations (delegated legislation). Generally the legislation provides for specified rights or duties, and authorises a regulator to make an order or decision to apply the legislative provisions to particular land or cases. For example, legislation might empower a regulator to make an order that requires the owner of a contaminated site to remediate it. When the regulator exercises the power by making an order in relation to particular land, the owner is placed under a statutory duty to remediate. When regulators exercise their statutory powers to manage the use of private land or natural or cultural resources on private land, property law issues can arise. The owner of land has a private property right that the law will enforce against anybody else who interferes with the enjoyment of the right, without legal authority to do so. The law dealing with the enforcement of private property rights forms part of private law. This report focuses on the relationship between the law of private property and the regulation of land and resources by legislation and by administrative decisions made under powers given by legislation (statutory powers).