An account of profits for a breach of contract (Attorney-General v Blake)

The House of Lords in Attorney-General v Blake addressed the controversial issue of whether a plaintiff who has suffered no loss as a result of the defendant’s breach of contract can nevertheless recover the profits the defendant obtained from the breach. Although the courts have traditionally been hostile to such claims, the House of Lords has ruled that, in exceptional cases, the defendant can be required to account to the plaintiff for the profits acquired from the breach of contract.

The effects of an apparent breach of therapeutic regulations on consumers: the Pan Pharmaceuticals recall

The aim of this study was to assess how demographic variables and personal values are related to people's knowledge and cognitive and behavioural responses towards a major drug recall event that occurred in Australia in 2003. For this purpose, a survey was sent out in 2003 to 1000 households in Victoria, Australia. Households had been randomly selected from the electoral role. A total of 415 respondents participated. Results indicated that higher socioeconomic status was related to better information about the recall event and more trust in manufacturers. Respondents who held traditional or naturalistic values were likely to trust that faults in the system would be regulated by the government or consumers themselves. Parents and older respondents were more likely to be critical of the Therapeutic Goods Administration which co-ordinated the recall. Parental status, education and values were related to subsequent changes in respondents' use of complementary medicines. In light of the worth of the health supplement industry to the Australian economy, the results of this survey suggest that the Therapeutic Goods Administration should adopt a more transparent and accountable role towards the public.

Police Misconduct as a Breach of Public trust: the Offence of Misconduct in Public Office

Until relatively recently, the common law offence of misconduct in public office has been regarded as anachronistic. The offence was perceived to have been supplanted by specific statutory offences that could more appropriately deal with criminal conduct by public officials. However, there has been a revival of the offence with successful prosecutions occurring in Australia, England and Hong Kong. Many of these contemporary cases have involved police officers. Examination of these cases reveals that the circumstances in which misconduct in public office has been identified have been diverse, including the unauthorised disclosure of confidential information, the use of false search warrants and the sexual exploitation of vulnerable persons. In many instances, police officers were charged with other criminal offences in addition to charges relating to misconduct in public office. The matters prosecuted as misconduct in public office typically involved matters that were serious and/or could not be adequately prosecuted as other criminal offences or as breaches of police regulations governing conduct. Consequently, despite the proliferation of statutory criminal offences in the 20th century it appears that there continues to be a place for the offence of misconduct in public office. It criminalises misconduct by police officers that may not be adequately dealt with by other offences and recognises the public trust dimension of wrongdoing by these officials. However, a continuing and fundamental challenge is to determine the appropriate definition and scope of the offence.

An exploration of relational customers` response to service failure

Purpose – The purpose of this paper is to examine how customers with different relational bonds respond to the same service failure. In particular, the framework to service failure and recovery devised by Fournier and Mick is applied.
Design/methodology/approach – To uncover rich emotional and cognitive responses to service failure, in-depth interviews with eight former and current patrons of an Australian opera were used.
Findings – Three types of relationship were identified: satisfaction-as-love (SaL), satisfaction-as-trust (SaT) and satisfaction-as-control (SaC). Each responded to the same failure in different ways. SaL customers had emotional bonds with the product category and thus reaffiremed their loyalty following the failure. SaT customers saw the service failure and inadequate recovery as a breach of the brand's implied promise and thus excited the relationship. SaC customers took charge of the situation, using their status to improve their situation and then defended the brand.
Practical implications – The findings indicate the importance of customizing service recovery strategies, in this case to those customers with the strongest emotional bonds to the brand, not the product class.
Originality/value – This is the first paper to examine how relational customers respond to service failure and identify how different customer-brand relationships result in different post-failure reactions and expectations of service recovery.

Codes of ethics in Sweden's largest public sector organizations : communicating the intent of the code within the organization

The aim of the study was to examine the ways that public sector organizations in Sweden communicated the intent of their codes of ethics to their employees. Primary data was obtained via a self-administered mail questionnaire distributed to a census of the top 100 organizations.

The study identified a range of methods used by organizations to integrate the ethos of codes into corporate culture. These methods included communication of the code, company induction of new staff, consequences for a breach of the code, ethical performance, an ethics ombudsman, the support of whistleblowers, a standing ethics committee, ethics education, and an ethics education committee.

Whilst many organizations have instituted ethical behaviour initiatives, activities specifically targeted at exposure, education and support for staff to perform ethically were found to be underdeveloped.

Child soldiers in the east of the Democratic Republic of Congo

According to the academic literature, the most widely used estimate is that approximately 300,000 children are part of regular and irregular armies worldwide, either as combatants or as support personnel. Moreover, most scholars believe that their numbers are growing. However, the truth is that no one really knows the actual number of child soldiers fighting in some seventy-two government or rebel forces in about twenty countries. This is simply because field work on this subject is notoriously difficult. And as it is in breach of international humanitarian law to engage a child under the age of 18 years, regular armies and guerrilla forces are hardly going to publicize the number of child soldiers in their ranks. Whatever the true number of child soldiers may be, the fact remains that child soldiers have become a principal component of military forces across Africa, Asia, and Latin America. For Africa alone, estimates suggest that there are 120,000 children, 40 per cent of all child soldiers. Moreover, not only has Africa experienced the fastest growth in the use of child soldiers, but the average age of the children enlisted in some African countries is declining as well. And this is despite the fact that there are a number of international treaties and principles that prohibit the use of child soldiers. Successfully bringing peace, security, and the rule of law in the Kivu provinces, in the Democratic Republic of the Congo (DRC), will be a massive challenge that will require domestic and regional measures implemented over probably several years. This will necessitate the continued active political and financial support of the international community.

The development and validation of a psychological contract of safety scale

Introduction
This paper builds on previous research by the author and describes the development and validation of a new measure of the psychological contract of safety. The psychological contract of safety is defined as the beliefs of individuals about reciprocal safety obligations inferred from implicit and explicit promises.

Method
A psychological contract is established when an individual believes that perceived employer and employee safety obligations are contingent on each other. A pilot test of the measure is first undertaken with participants from three different occupations: nurses, construction workers, and meat processing workers (N = 99). Item analysis is used to refine the measure and provide initial validation of the scale. A larger validation study is then conducted with a participant sample of health care workers (N = 424) to further refine the measure and to determine the psychometric properties of the scale.

Results
Item and correlational analyses produced the final employer and employee obligations scales, consisting of 21 and 17 items, respectively. Factor analyses identified two underlying dimensions in each scale comparable to that previously established in the organizational literature. These transactional and relational-type obligations provided construct validity of the scale. Internal consistency ratings using Cronbach's alpha found the components of the psychological contract of safety measure to be reliable.

Impact on Industry
The refined and validated psychological contract of safety measure will allow investigation of the positive and negative outcomes associated with fulfilment and breach of the psychological contract of safety in future research.

A comparative analysis of directors' duty of care, skill and diligence in South Africa and in Australia

The South African and Australian law regarding directors' duty of care, ski ll and diligence were influenced considerably by English precedent of the late 1800s and early 19005. Originally both jurisdictions adopted a conservative approach towards directors' duty of care, skill and diligence. This resulted in very low standards of care, skill and diligence expected of directors. In Australia, the standards of care and diligence expected of directors changed drastically with the case of Daniels v Anderson, where objective standards were used to determine a breach of directors' duty of care and diligence, and when objective standards of care and diligence were introduced in Australian corporations legislation. In this article it is submitted that if the opportunity arose for a South African court to consider whether a director is in breach of his or her common law duty of care, skill and diligence, the form of fault that will be required will be negligence as judged against the standards of a reasonable person. This means that in actual fact objective standards of care and diligence are expected of directors in South Africa. Although section 76(3) of the South African Companies Act 71 of 2008 does not introduce purely objective standards of care, skill and diligence, the section is defended in this article. It is pointed out that encouraging emerging entrepreneurs to become directors of South African companies provides justification for keeping subjective elements as part of the test to determine whether a director was in breach of his or her statutory duty of care, skill and diligence.

Frequency and nature of reported incidents during emergency department care

Background The aim of this study was to examine reported incidents affecting Emergency Department (ED) episodes of care.
Methods A retrospective audit of ED patients was carried out in an urban district hospital in Melbourne, Australia from 1 January 2008 to 31 December 2008. The main outcome measure was presence or absence of reported patient-related incident(s) during ED care.
Results There were 984 patient-related incidents (n¼984) during 2008.The most common incidents were related to patient behaviour (66.4%), patient management (10.1%) and medications (6.5%). Patients whose ED care involved reported incident(s) were older, had higher triage categories, longer length of ED stay and were more likely to need hospital admission or leave at their own risk. Eighteen per cent of reported incidents occurred in patients aged 65 years and over. Incidents affecting older patients were more likely to be related to breach of skin integrity, patient management, diagnosis and patient identification, and less likely to involve patient behaviour.
Conclusions Reported incident(s) occurred in 0.47% of ED episodes of care. Differences in personal and clinical characteristics of patients whose ED care involved reported incident(s) highlights the need for better understanding of incidents occurring in the ED in order to improve systems for high-risk patients.

The new law of torts: case book

The New Law of Torts Case Book is a collection of edited cases, designed as a companion to The New Law of Torts textbook. It provides students with access to a carefully selected range of case extracts of seminal judgements that have created and shaped the modern law of torts, provides examples of judicial reasoning and illustrates approaches to doctrines that govern the interpretation and construction of statutes. Cases extracted in this volume allow the readers to form their own opinions and perspectives on themes and issues presented in the textbook. New to this edition Expanded collection of case extracts that mirror the table of contents of principles text. Recent key cases that have been added include: Wallace v Cam [2013] HCA19 – relates to remoteness of damage and causation and proof of breach Strong v Woolworths [2012] HCA 5; 246 CLR 182 – relates to Breach of Duty of Care and Causation and Proof of Breach Levy v Watt and Anor [2014] VSCA 60 – relates to Torts of Intentional Interference with Goods and Personal Property and Defences to Intentional Torts

Corporate culture and greed: the case of the Australian Wheat Board

Between 1999 and 2002, the Australian Wheat Board (AWB) was involved in an elaborate bribery, or 'kickback', scheme involving the illicit payment of A$300 million to the Iraq government for supposed 'transportation fees' that were funnelled to the Saddam Hussein regime. This was clearly in breach of the United Nations trade sanctions and was apparently perpetrated by the AWB to secure continued sales with the lucrative Iraqi market. This paper aims to gain further insight into how a corporate culture can lead to greed, corruption and deception. Specifically, this study aims to add to the literature by analysing, using Schein's (1997, 2004) theoretical framework, a case on the development of a corrupt corporate culture. Content analysis of official investigative reports and other published documents is used to determine the extent to which the AWB's corporate culture and leadership may have influenced the behaviour of senior managers. The findings indicate that the culture within the AWB fostered an environment in which senior managers placed sales and profits above the sanctions clearly enunciated by the United Nations.

How does the cookie crumble? legal costs under a uniform interpretation of the United Nations Convention on Contracts for the International Sale of Goods

A family owned Mexican company, Zapata Hermanos Sucesores, S.A. ("Zapata"), sold approximately US$950,000 worth of cookie tins over a period of four years to the Maurice Lenell Cooky Company ("Lenell"), an American company that produced baked goods. Lenell failed to pay Zapata for the cookie tins so Zapata sought legal advice and instituted legal proceedings against Lenell for breach of contract in the Federal District Court of Illinios. The cookie tin sale contracts were governed by the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Zapata succeeded in its Federal District Court claim and, as part of the Court's order, was awarded US$550,000 as foreseeable loss under Article 74 of the CISG, being the amount of legal fees incurred by Zapata in bringing proceedings against Lenell. On appeal to the Federal Appellate Court, however, the award of legal fees was overturned. The parties now find themselves contesting a leave application to appeal to the Supreme Court of the United States of America in a much anticipated debate over who should pay the lawyers.

Opting only in: Contractarians, waiver of liability provisions, and the race to the bottom

This paper will test the core claim of scholars in the nexus of contracts tradition—that private ordering as a process of bargaining creates optimal rules. We do this by analyzing empirical evidence in the context of waiver of liability provisions. These provisions allow companies to eliminate monetary damages for breach of the duty of care through amendments to the articles of incorporation. With all states allowing some form of these provisions, they represent a good laboratory to examine the bargaining process between management and shareholders. The contractarian approach would suggest that shareholders negotiate with management to obtain agreements that are in their best interests. If a process of bargaining is at work as they claim, the opt-in process for waiver of liability provisions ought to generate a variety of approaches. Shareholders wanting a high degree of accountability would presumably not support a waiver of liability. In other instances, shareholders might favor them in order to attract or retain qualified managers. Still others would presumably want a mix, allowing waiver but only in specified circumstances.Our analysis reveals that the diversity predicted by a private ordering model is not borne out by the evidence with waiver of liability provisions for Fortune 100 companies. All states permit such provisions and in the Fortune 100, all but one company has them. Moreover, they are remarkably similar in effect, waiving liability to the fullest extent permitted by law. In other words, one categorical rule was merely replaced by another, dealing a significant blow to the contractarian thesis.

Putting the spoils of litigation into the shareholders’ pockets: when can shareholders bring a personal action against the directors of their company?

company is legally incorporated it must be treated like any other independent person with its rightsand liabilities appropriate to itself”.2 A consequence of this is the “proper plaintiff” principleestablished in Foss v Harbottle (1843) 2 Hare 461; 67 ER 189: the proper plaintiff in an action inrespect of a wrong done to a corporation is the corporation itself.3 It is also a “hallowed rule” thatdirectors owe their duties to the company, not the shareholders,4 and so any loss accruing to thecompany as a result of the directors’ breach of their duties is recoverable only by the company.5An obvious problem with this state of affairs is that a company will be unlikely to initiateproceedings against its directors when the company is controlled by those directors.6 While there aregood economic reasons for this division of management and ownership,7 shareholders are left with acritical question: under what circumstances can they initiate proceedings to recover loss suffered as aresult of company directors’ breach of their duties? Although one writer has referred to the“expansive statutory and common law arsenals” available to aggrieved shareholders,8 it seems ratherthe case that there are few effective remedies. For shareholders have no contractual relationship withdirectors,9 and the personal rights conferred on shareholders by statute or general law are largelyprocedural10 and seem a rather ineffective basis for “scrutinising directorial performance”.