A way through the dark and thorny thickets? The adjudication of ‘serious injury’ under the narrative tests in the Transport Accident Act 1986 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

The so-called narrative test provides the means by which injured persons who satisfy the statutory and common law definition of serious injury may bring proceedings for common law damages under s 93 of the Transport Accident Act 1986 (Vic) and s 134AB of the Accident Compensation Act 1985 (Vic) (or, for injuries after 1 July 2014, under ss 324-347 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)). These are among the most litigated provisions in Australia. This article outlines the legislative and political background to these provisions, the provisions themselves, and an account of the statutory and common law requirements needed to satisfy the provisions.

Investigating the factors influencing the quality of adjudication of complex payment disputes in Australia

Statutory adjudication has been enacted throughout Australia on a state-by-state basis. The original enacting legislation may be broadly divided into two models which have become known as the East Coast and West Coast models. The East Coast model adjudication scheme – which is operational in NSW, Victoria, Queensland, Tasmania, ACT and South Australia – has in recent times come under much criticism for failing to facilitate determinations of sufficient quality with respect to large and/or complex payment claims. By carrying out a thorough desktop study approach whereby evidence is garnered from three primary sources – government commissioned consultation papers, academic publications and judicial decisions – this paper reviews this criticism and therefrom distils the key factors influencing the quality of adjudication of large and/or complex claims in Australia.

A proposed roadmap to optimise the adjudication of complex payment disputes in Australia

In Australia, statutory construction adjudication has recently received a lot of criticism due to the increasing amount of determinations that have been quashed upon judicial review, and anecdotal evidence from some quarters showing dissatisfaction with the quality of adjudication decisions. Such criticism is particularly aimed at adjudications of large and technically and legally complex payment disputes, where adjudicators are under pressure to consider substantial volumes of submissions in very tight timeframes. More specifically, criticisms have been directed at, inter alia, adjudicator’s regulations, procedural fairness, jurisdictional powers and finality of decisions. This paper reviews the measures to improve the quality of adjudications of complex payment disputes then proposes a roadmap by selecting the Qld model as a benchmark but suggesting further improvements identified and explained via specific steps or pit stops. The pit stops include criteria for timeframes of complex claims, appointment, regulation and powers of adjudicators and a review system on the merits to control the quality of adjudication decisions replicating the Singapore model. The findings remain as blunt instruments and deemed as hypotheses to inform subsequent empirical research which the authors are currently undertaking to further investigate, strengthen and validate the findings of this study in order to propose a reliable and useful guide to any parliament seeking to optimise its statutory adjudication to effectively deal with complex payment disputes.

Examining the approaches to diminish judicial intervention in statutory adjudication in Australia

In Australia, statutory construction adjudication is a fast payment dispute resolution process designed to keep the cash flowing down the hierarchical contractual chain in construction projects. Its rapid, highly regulatory and temporarily binding nature have led to it being often described as a ‘quick and dirty’ process that delivers ‘rough and ready’ justice. Adjudicators often have to grapple with complex legal issues related to jurisdictional facts and interpretation of contract provisions, though the majority of them are not legally trained. This has often led to a poor quality of adjudication outcome for large and complex payment claims which has, in turn, led to a mounting dissatisfaction due to the many judicial challenges to adjudicators’ determinations seen in recent years. The evolving tension between the object of the security of payment legislation and excessive involvement of the courts has often been the subject of comment by the judiciary. This paper aims to examine the legislative and judicial approaches to support the object of the security of payment legislation to ease cash flow. The paper adopts a desktop study approach whereby evidence is gathered from three primary sources – judicial decisions, academic publications and governmental reports. The paper concludes that there is a need to adopt other measures which can provide more convenient relief to aggrieved parties to an adjudication process, such that the adjudication process is kept away from the courts as far as is possible. Specifically, it is proposed that a well-designed expanded legislative review scheme of allegedly flawed adjudication, based on that provided in the Western Australian legislation, might stand as a promising remedy to eliminate the evolving tension.

Taking statutory adjudication to the next level: a proposal for review mechanism of erroneous determinations

Statutory adjudication was introduced in the security of payment legislation to quickly and fairly resolve payment disputes in the construction industry. One of the interesting features in some legislation is the availability of an express limited right of aggrieved parties to apply for review against erroneous adjudication decisions. In Singapore, the legislation has no equivalent elsewhere in that it provides for a full review mechanism of erroneous determinations considering the fact that adjudicators often have to grapple with complex issues as sheer volume of documents within a very tight timeframe. This paper discusses the various review mechanisms of erroneous adjudication determinations then asks the question as to whether an appropriately devised legislative review mechanism on the merits, should be an essential characteristic of any effective statutory adjudication scheme. The paper concludes by making the case that an appropriately designed review mechanism as proposed in the paper could be the most pragmatic and effective measure to improve the quality of adjudication outcome and increase the disputants' confidence in statutory adjudication. This paper is based upon a paper by the author which received a High Commendation in the Student Division of the Society of Construction Law Australia Brooking Prize for 2016.

Towards diminishing judicial intervention in statutory adjudication: a pragmatic proposal

Statutory adjudication was introduced into the Security of Payment (SOP) legislation as a fast-track payment dispute resolution process aiming to achieve the object of the legislation to facilitate cash flow within the construction contractual chain. As such, adjudication determinations were usually released and enforced on a "pay now, argue later" 1 basis in order to protect a vulnerable class of smaller businesses within the building and construction industry. The SOP legislation was extremely successful in attaining the stated object in the context of small adjudicated payment claims where both parties used to comply with the adjudication determination.

Settlement of Disputes Within the World Trade Organisation: A Guide to the Jurisprudence

The Urugauy Round of Multilateral Trade Negotiations led to the development of a revised set of procedures on dispute settlement. These procedures dealt with a number of significant problems that had arisen under GATT dispute settlement experience. In spite of these important reforms, there are numerous, complex and contentious questions of legal adjudication that any formal dispute settlement system must face. The article outlines the aims and organs of dispute settlement under the WTO. It addresses some of the key questions as to standing, interpetation, evidence and adjudicatory practices and processes. While ongoing moitoring and reform is necessary, an important thesis is that the inherent nature of legal adjudication forces uncertain determinations that can too easily give rise to unwarranted criticism of the system as a whole.

HOMA insulin sensitivity index and the risk of all-cause mortality and cardiovascular disease events in the general population : the Australian diabetes, obesity and lifestyle study (AusDiab) study

Aims/hypothesis We assessed whether the relationships between insulin sensitivity and all-cause mortality as well as fatal or non-fatal cardiovascular disease (CVD) events are independent of elevated blood glucose, high blood pressure, dyslipidaemia and body composition in individuals without diagnosed diabetes.
Methods Between 1999 and 2000, baseline fasting insulin, glucose and lipids, 2 h plasma glucose, HbA1c, anthropometrics, blood pressure, medication use, smoking and history of CVD were collected from 8,533 adults aged >35 years from the population-based Australian Diabetes, Obesity and Lifestyle study. Insulin sensitivity was estimated by HOMA of insulin sensitivity (HOMA-%S). Deaths and fatal or non-fatal CVD events were ascertained through linkage to the National Death Index and medical records adjudication.
Results After a median of 5.0 years there were 277 deaths and 225 CVD events. HOMA-%S was not associated with all-cause mortality. Compared with the most insulin-sensitive quintile, the combined fatal or non-fatal CVD HR (95% CI) for quintiles of decreasing HOMA-%S were 1.1 (0.6–1.9), 1.4 (0.9–2.3), 1.6 (1.0–2.5) and 2.0 (1.3–3.1), adjusting for age and sex. Smoking, CVD history, hypertension, lipid-lowering medication, total cholesterol and waist-to-hip ratio moderately attenuated this relationship. However, the association was rendered non-significant by adding HDL. Fasting plasma glucose, but not HOMA-%S significantly improved the prediction of CVD, beyond that seen with other risk factors.
Conclusions/interpretation In this cohort, HOMA-%S showed no association with all-cause mortality and only a modest association with CVD events, largely explained by its association with HDL. Fasting plasma glucose was a better predictor of CVD than HOMA-%S.

Contributory factors to patient safety incidents in primary care: protocol for a systematic review

BACKGROUND: Organisations need to systematically identify contributory factors (or causes) which impact on patient safety in order to effectively learn from error. Investigations of error have tended to focus on taking a reactive approach to learning from error, mainly relying on incident-reporting systems. Existing frameworks which aim to identify latent causes of error rely almost exclusively on evidence from non-healthcare settings. In view of this, the Yorkshire Contributory Factors Framework (YCFF) was developed in the hospital setting. Eighty-five percent of healthcare contacts occur in primary care. As a result, this review will build on the work that produced the YCFF, by examining the empirical evidence that relates to the contributory factors of error within a primary care setting. METHODS/DESIGN: Four electronic bibliographic databases will be searched: MEDLINE, Embase, PsycInfo and CINAHL. The database search will be supplemented by additional search methodologies including citation searching and snowballing strategies which include reviewing reference lists and reviewing relevant journal table of contents, that is, BMJ Quality and Safety. Our search strategy will include search combinations of three key blocks of terms. Studies will not be excluded based on design. Included studies will be empirical studies conducted in a primary care setting. They will include some description of the factors that contribute to patient safety. One reviewer (SG) will screen all the titles and abstracts, whilst a second reviewer will screen 50% of the abstracts. Two reviewers (SG and AH) will perform study selection, quality assessment and data extraction using standard forms. Disagreements will be resolved through discussion or third party adjudication. Data to be collected include study characteristics (year, objective, research method, setting, country), participant characteristics (number, age, gender, diagnoses), patient safety incident type and characteristics, practice characteristics and study outcomes. DISCUSSION: The review will summarise the literature relating to contributory factors to patient safety incidents in primary care. The findings from this review will provide an evidence-based contributory factors framework for use in the primary care setting. It will increase understanding of factors that contribute to patient safety incidents and ultimately improve quality of health care.

The prevalence of glaucoma in the Melbourne Visual Impairment Project

PURPOSE: The purpose of the study was to determine the prevalence of glaucoma in Melbourne, Australia. METHODS: All subjects were participants in the Melbourne Visual Impairment Project (Melbourne VIP), a population-based prevalence study of eye disease that included residential and nursing home populations. Each participant underwent a standardized eye examination, which included a Humphrey Visual Field test, applanation tonometry, fundus examination including fundal photographs, and a medical history interview. Glaucoma status was determined by a masked assessment and consensus adjudication of visual fields, optic disc photographs, intraocular pressure, and glaucoma history. RESULTS: A total of 3271 persons (83% response rate) participated in the residential Melbourne VIP. The overall prevalence rate of definite primary open-angle glaucoma in the residential population was 1.7% (95% confidence limits = 1.21, 2.21). Of these, 50% had not been diagnosed previously. Only two persons (0.1%) had primary angle-closure glaucoma and six persons (0.2%) had secondary glaucoma. The prevalence of glaucoma increased steadily with age from 0.1% at ages 40 to 49 years to 9.7% in persons aged 80 to 89 years. There was no relationship with gender. The authors examined 403 (90.2% response rate) nursing home residents. The age standardized rate for this component was 2.36% (95% confidence limits = 0, 4.88). CONCLUSION: The rate of glaucoma in Melbourne rises significantly with age. With only half of patients being diagnosed, glaucoma is a major eye health problem and will become increasingly important as the population ages.

How should adjudicators deal with expert reports in Australia?

Since its introduction in to Australia fifteen years ago, statutory adjudication has become increasingly used by parties seeking to recover payment claims which are large in amount and technically and legally complex in nature. This has inevitably led to the formalisation of the adjudication process with parties often submitting, amongst other documents, expert witness reports to support their arguments. The increase in documentation that an adjudicator must consider poses a threat to the integrity of the adjudicator’s determination. This paper adopts a ‘black letter’ approach to distil the law concerning the way in which adjudicators should deal with expert reports, and reveals there are many pitfalls that an adjudicator should be aware of. Moving forward, this paper seeks to inform the PhD study of the lead author which eventually aims to formulate a roadmap with recommendations that may be applied to help optimise the various Australian adjudication schemes for the determination of large and/or complex payment claims.

Australian security of payment legislation: impact of inconsistent case law

In Australia, a supreme court has a supervisory role over the statutory adjudication process that has been established within the security of payment legislation. In this role, the courts have quashed many adjudication determinations on the grounds of jurisdictional error in recent years. This is a problem as the courts’ involvement in statutory adjudication is contrary to the object of the legislation. When reviewing adjudication determinations, the courts have adopted different approaches with respect to determining the role of adjudicators and the essential jurisdictional facts that must exist in order for an adjudicator to have jurisdiction to hear a referred disputed matter. This diversification of judicial interpretation with respect to jurisdictional error is confusing, not only to construction professionals, but also to many lawyers. Via a desktop study– where the evidence is mainly garnered from case law, governmental reports and commentaries – this paper reviews the legal complexities involved in diagnosing jurisdictional errors. In doing so, the paper aims to answer the question as to why the adjudication process has become bogged down in the quagmire of judicial review. The paper concludes that the evolving inconsistency of case law in relation to statutory adjudication is a crucial factor contributing to the erosion of the object of the security of payment legislation in Australia. Moving forward, the paper argues that establishing a legislative review mechanism of jurisdictional challenges may be sufficient to address this problem.

The application of building information modelling in a construction project in China

Previous studies have proved the application of Building InformationModelling (BIM) can lead to greater efficiencies. Slowly adopting newtechnologies and limited technological innovation are criticised for theconstruction industry. In this paper, we present research that examinesthe practices of BIM technologies for the clash detection and coordination among building structure, equipment and pipelines, quantity statistics and construction simulation in a construction project in China. The BIM application significantly promotes the abilities to achieve construction schedule, quality, budget, and scope objectives in the project. The technological capabilities of BIM, the illegal issues of BIM outputs and developing cooperative project management culture are needed in order to promote BIM application in the construction industry.