Planes, trains, automobiles and the action per quod servitium amisit

The action per quod servitium amisit compensates an employer for the loss of an employee’s services, where such loss is caused due to the commission of a tort by a third party which injures the employee. Although not commonly pleaded, such actions often arise when employees are harmed due to transportation accidents. For example, where allowed, physical injury caused by the negligent driving of automobiles, and the psychiatric injury suffered by an engine driver upon averting a collision with a motorcyclist crossing before an oncoming train...

Civil litigation limitation periods : submission to the Royal Commission into institutional responses to child sexual abuse

This submission makes one simple yet powerful recommendation for law reform to promote justice for survivors of child sexual abuse. It is informed by extensive analyses of the phenomenon of child sexual abuse and its psychological sequelae, legislative time limits and case law across Australia and internationally, the policy reasons underpinning statutory time limits generally, and the need for fairness, certainty and practicability in the legal system. The recommendation is that legislative reform is required in all Australian States and Territories to remove time limitations for civil claims for injuries caused by child sexual abuse.

Low-cost railway level crossings - breaking down the barriers

Level crossing risk continues to be a significant safety concern for the security of rail operations around the world. Over the last decade or so, a third of railway related fatalities occurred as a direct result of collisions between road and rail vehicles in Australia. Importantly, nearly half of these collisions occurred at railway level crossings with no active protection, such as flashing lights or boom barriers. Current practice is to upgrade level crossings that have no active protection. However, the total number of level crossings found across Australia exceed 23,500, and targeting the proportion of these that are considered high risk (e.g. public crossings with passive controls) would cost in excess of AU$3.25 billion based on equipment, installation and commissioning costs of warning devices that are currently type approved. Level crossing warning devices that are low-cost provide a potentially effective control for reducing risk; however, over the last decade, there have been significant barriers and legal issues in both Australia and the US that have foreshadowed their adoption. These devices are designed to have significantly lower lifecycle costs compared with traditional warning devices. They often make use of use of alternative technologies for train detection, wireless connectivity and solar energy supply. This paper describes the barriers that have been encountered for the adoption of these devices in Australia, including the challenges associated with: (1) determining requisite safety levels for such devices; (2) legal issues relating to duty of care obligations of railway operators; and (3) issues of Tort liability around the use of less than fail-safe equipment. This paper provides an overview of a comprehensive safety justification that was developed as part of a project funded by a collaborative rail research initiative established by the Australian government, and describes the conceptual framework and processes being used to justify its adoption. The paper provides a summary of key points from peer review and discusses prospective barriers that may need to be overcome for future adoption. A successful outcome from this process would result in the development of a guideline for decision-making, providing a precedence for adopting low-cost level crossing warning devices in other parts of the world. The framework described in this paper also provides relevance to the review and adoption of analogous technologies in rail and other safety critical industries.

Health law : scope, sources and forces

• For the purposes of this chapter, “health law” encapsulates regulation of the medical and health professions, the administration of health services and the maintenance of public health to the extent that it is connected to the provision of health services. • There are diverging views as to whether health law can be regarded as a discrete “area of law”. • Health law draws on other areas of law such as tort law, criminal law and family law. It also draws upon other disciplines, most notably medical and health ethics. • Social and economic forces have influenced the development and direction of health law, and these forces may become even more influential in the future. • The increasingly globalised world has implications for Australia's health systems and raises questions and creates commitments in respect of the international community. • Technological developments, including in respect of treatment, diagnosis and information management, create ongoing challenges for health law. • Patient rights, human rights and consumerism are increasingly key drivers in the development of health law. • Health law is significant to contemporary Australian society because of the gravity of the topics that fall within its ambit, its social relevance to so many aspects of human existence and endeavour, the important role it plays in protecting the vulnerable, and the extent to which it engages with fundamental principles of justice.

Assessment of damages for defamation of business and personal reputation

An award of damages for defamation is to provide reparation for harm to a plaintiff’s reputation for the publication of defamatory material, compensate for any personal distress caused and vindicate the plaintiff’s reputation.1 Assessing such damages is recognised as a difficult task and perhaps the Queensland courts face further difficulties as there are few awards of damages for defamation in the state. This was pointed out in the recent decision of the Queensland Court of Appeal, Cerutti & Anor v Crestside Pty Ltd & Anor.2 This decision examined in detail the principles of assessing damages for defamation.

Case note : Keegan v Sussan Corporation (Aust) Pty Ltd

A recent decision of the Queensland Supreme Court highlights that merely having a policy in a workplace is not sufficient in itself – the policy must be implemented and followed if an employer wishes to establish that it is not in breach of its duty of care owed to employees. In Keegan v Sussan Corporation (Aust) Pty Ltd an employee successfully sued in negligence for her psychiatric injury caused by her employer’s failure to follow its bullying and harassment policy.

Nondelegable duty : the implications of Woodland v Essex County Council

English law has long recognised that nondelagable duties exist, but it does not have a single theory to explain when or why - arguable, one might add, until now. That is the value of the reasons for judgement in Woodland v Essex County Council.

Assessment of damages in wrongful birth cases

More than ten years has passed since the High Court of Australia confirmed the recoverability of damages for the cost of raising a child in the well know decision of Cattanach v Melchior . A recent decision of the Supreme Court of New South Wales was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases.

Hamcor Pty Ltd v Queensland

The Ipp Report recommendation that for claims for personal injury and death arising from the negligent performance or non-performance of a public function based upon a policy decision, could not establish negligence unless the public authority was so unreasonable that no reasonable public authority in the same position would have made it, was adopted in different ways by all jurisdictions except South Australia and the Northern Territory.1 This introduced the public law concept of Wednesbury unreasonableness to civil liability which caused much academic debate.2 Section 36 of the Queensland provides...

Once more into the mire, dear friends : determining the existence of a duty of care in negligence

There were signs in the 1997 High Court decision in Hill v Van Erp that the different members of the bench were beginning to move in the same direction when it came to the tort equivalent of the search for the Holy Grail, a common approach to the determination of the existence of a duty of care in negligence. However, the court's subsequent decision in Perre v Apand signaled a slide back to uncertainty with the seven judges favouring five different approaches. This Note examines those five approaches in the search for guidance for those at the "coalface" - litigants, their legal advisers and trial judges.

Medical negligence, causation and liability for non-disclosure of risk : a post-wallace framework and critique

Through an examination of Wallace v Kam, this article considers and evaluates the law of causation in the specific context of a medical practitioner’s duty to provide information to patients concerning material risks of treatment. To supply a contextual background for the analysis which follows, Part II summarises the basic principles of causation law, while Part III provides an overview of the case and the reasoning adopted in the decisions at first instance and on appeal. With particular emphasis upon the reasoning in the courts of appeal, Part IV then examines the implications of the case in the context of other jurisprudence in this field and, in so doing, provides a framework for a structured consideration of causation issues in future non-disclosure cases under the Australian civil liability legislation. As will become clear, Wallace was fundamentally decided on the basis of policy reasoning centred upon the purpose behind the legal duty violated. Although the plurality in Rogers v Whitaker rejected the utility of expressions such as ‘the patient’s right of self-determination’ in this context, some Australian jurisprudence may be thought to frame the practitioner’s duty to warn in terms of promoting a patient’s autonomy, or right to decide whether to submit to treatment proposed. Accordingly, the impact of Wallace upon the protection of this right, and the interrelation between it and the duty to warn’s purpose, is investigated. The analysis in Part IV also evaluates the courts’ reasoning in Wallace by questioning the extent to which Wallace’s approach to liability and causal connection in non-disclosure of risk cases: depends upon the nature and classification of the risk(s) in question; and can be reconciled with the way in which patients make decisions. Finally, Part V adopts a comparative approach by considering whether the same decision might be reached if Wallace was determined according to English law.

Professional indemnity insurance, performance and pre-emptive negligence: The impact of ‘non-claims’

As part of Australian licensing requirements professional valuers are required to maintain a level of professional indemnity insurance. A core feature of any insurance cover is that the insured has an obligation to notify their insurer of both actual and potential claims. An actual claim clearly will impact upon future policies and premiums paid. Notification of a potential claim, whether or not the notification crystallises into an actual claim, also can have an impact upon the insured’s claims history and premiums. The Global Financial Crisis continues to impact upon business practices and land transactions both directly and indirectly. The Australian valuation profession is not exempt from this impact. One example of this ongoing impact is reflected in a worrying practice engaged in by some financial institutions in respect of their loan portfolios. That is, even though the mortgagor is not in default, some institutions are pre-emptively issuing notices of demand regarding potential losses. Further, in some instances such demands are based only on mass appraisal valuations without specific consideration being given to the individual lot in question. The author examines the impact of this practice for the valuation profession and seeks to provide guidance for the appropriate handling of such demands.