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.

Jones -v- Bartlett: landlords` liability to tenants and members of their household in negligence

According to the latest available statistics, in 1997-98, of the total of seven million Australian households, two million were renting their dwelling from a State housing authority or private landlords.Therefore, the decision on the scope of landlords' liability to tenants, members of their households, and guests in the right of the tenant handed down by the High Court of Australia in November 2000 was not only of legal, but also of social and economic significance. This note will discuss the Jones v Bartlett case in the context of the traditional common law approach to landlords' liability and the ground-breaking, if flawed, case of Northern Sandblasting Pty Ltd v Harris.

Quo iure? Defendants' liability to rescuers in the tort of negligence

The year 2001 marks the 80th anniversary of Cardozo J's judgment in Wagner v International Railway Co 232 NY 176 (1921). This article examines theoretical and procedural problems associated with the concept of duty of care as a foundation for the defendant's liability in negligence to altruistic rescuers, and suggests that Cardozo J's judgment did not establish the principle that defendants owe rescuers a duty of care in negligence. It is argued that subsequent judgments failed to provide the duty of care owed to rescuers under tortious negligence with proper jurisprudential foundations. Conceptual difficulties inherent in a jurisprudential principle that would provide physically injured rescuers with a legal right to a duty of care from the defendant under the tort of negligence were compounded once compensation for negligently occasioned pure emotional distress became available. This article analyses various theories of recovery for pure psychiatric injury and the classification of rescuers into primary and secondary victims. It proposes a solution in the form of a separate cause of action on the case for liability to injured rescuers, partly based on the principle of necessity that governs the Roman action for negotiorum gestio. Cases from the United States, England and Australia are used to illustrate the similarities and differences in the development of and approaches to, the law of rescue.

Unsafe leased residential premises: a landlord's liability in negligence to injured occupants

This article examines the law relating to the liability of landlords in negligence for unsafe residential premises, focusing in particular on the recent High Court decisions in Northern Sandblasting Pty Ltd v Harris and Jones v Bartlett. The author concludes that the High Court in Jones v Bartlett has placed sensible limitations on landlords' liability, by limiting liability to defects in the premises that were known or ought to have been revealed on a reasonable inspection by the landlord. The author points out that there are compelling policy considerations supporting the court's conclusion in that case that the landlord should not be required to arrange for the premises to be inspected by expert tradespeople.

Corporate liability for workplace deaths and injuries-reflecting on Victoria's laws in the light of the Esso Longford explosion

The purpose of this article is to consider some different legal models for the liability of corporations for the deaths and serious injuries of their employees, with particular emphasis on the law in Victoria.

Two recent developments in Victoria prompt this consideration. First, on 30 July 2001, the Victorian Supreme Court handed down its sentencing decision in the case arising from the explosion on 25 September 1998 at the Longford gas plant operated by Esso Australia Pty Ltd. The decision marked the end of the formal public consideration of a devastating event in Victorian industrial history, which began with the Royal Commission set up on 20 October 1998 to investigate the causes of an explosion in which two workers died and eight others were injured. Second, in early 2002, the Victorian Government failed in its attempt to introduce new criminal offences for corporate employers whose employees are killed or seriously injured at work. In spite of their failure to be passed by the Legislative Council in Victoria, these proposals warrant consideration. They represent a growing trend by policy makers in attempting to address more effectively the question of the liability for deaths and serious injuries of workers to employers who operate through the corporate form.

"Sexually transmitted debts":the scope of defences to directors' liability for insolvent trading

The recent demise of prominent Australian corporations, such as GIO Australia Holdings Ltd, One.Tel Ltd, HIH Insurance Ltd and Ansett Australia Ltd, have highlighted the relevance of, inter alia, the Australian insolvent trading provisions embodied in the Corporations Act 2001 (Cth) (formerly Corporations Law). What may not be appreciated, however, is that insolvent trading is not only concerned with large public companies. Many of the insolvent trading cases that come before the courts involve small proprietary companies. Moreover, in many cases these are small “family” companies where there may only be one active director. This gives rise to a difficult issue as to the appropriateness of imposing liability for insolvent trading on a spouse who is, factually, merely a dormant director. This article explores the issue of spousal liability for insolvent trading, particularly focusing on the scope of the current defences to insolvent
trading under s 588H.

Characterisation of a synthesised fluorescent ligand (4-acridinol-1-sulphonic acid) using nuclear magnetic resonance spectroscopy

The synthesis and complete characterisation of the fluorescent ligand, 4-acridinol-1-sulphonic acid (the acridine analogue of 8-quinolinol-5-sulfonic acid) is described. Using a judicious array of nuclear magnetic resonance spectroscopy experiments, the structural elucidation and full assignment of all proton and carbon chemical shifts were afforded. The 4-acridinol-1-sulphonic acid was found to behave in a similar manner to 8-quinolinol-5-sulphonic acid, forming fluorescent complexes with magnesium(II) and zinc(II). The uncorrected emission maxima for the metal–acridinol complexes were found to be at around 620 nm compared to 505 nm for the respective quinolinol complexes. Unfortunately, preliminary spectrofluorimetric analytical figures of merit revealed that the detection limits of the new acridinol metal complexes were one and a half orders of magnitude poorer than those attained with the corresponding quinolinol ligand. However, in contrast to 8-quinolinol-5-sulphonic acid, the 4-acridinol-1-sulphonic acid ligand showed considerable selectivity for magnesium(II) and zinc(II) over aluminium(III).

Exercise increases nuclear AMPK α2 in human skeletal muscle

An acute bout of exercise increases skeletal muscle glucose uptake, improves glucose homeostasis and insulin sensitivity, and enhances muscle oxidative capacity. Recent studies have shown an association between these adaptations and the energy-sensing 5' AMP-activated protein kinase (AMPK), the activity of which is increased in response to exercise. Activation of AMPK has been associated with enhanced expression of key metabolic proteins such as GLUT-4, hexokinase II (HKII), and mitochondrial enzymes, similar to exercise. It has been hypothesized that AMPK might regulate gene and protein expression through direct interaction with the nucleus. The purpose of this study was to determine if nuclear AMPK α₂ content in human skeletal muscle was increased by exercise. Following 60 min of cycling at 72 +/- 1% of V_O2peak in six male volunteers (20.6 +/- 2.1 years; 72.9 +/- 2.1 kg; V_O2peak = 3.62 +/- 0.18 l/min), nuclear AMPK α₂ content was increased 1.9 +/- 0.4-fold (P = 0.024). There was no change in whole-cell AMPK α₂ content or AMPK α₂ mRNA abundance. These results suggest that nuclear translocation of AMPK might mediate the effects of exercise on skeletal muscle gene and protein expression.

The high court on vicarious liability

Vicarious liability (respondeat superior) is a venerable common law doctrine which holds an employer liable for the torts of employees, regardless of the fault of the employer. An employer's liability for the torts of its employees can represent a significant financial obligation and can affect both hiring and operational decisions of businesses. Vicarious liability is a prominent theme in the background of much litigation and is often the reason for litigating the issue of whether or not a worker is an employee. Vicarious liability may also arise through other relationships, such as partnership and agency. Two recent decisions by the High Court of Australia have drawn attention to the issue of vicarious liability. These decisions illuminate the High Court's view of vicarious liability's two main streams: negligence (Hollis v Vabu Pty Ltd) n2 and intentional tort (NSW v Lepore). [*2] n3

The nuclear exclusion : what does it mean and who has been tampering with it?

A nuclear exclusion appears in all general insurance policies. Since its introduction to Australia and New Zealand in the 1960s this exclusion has seen almost no change. So what are the reasons for this article? There are two reasons. First, there has been a misunderstanding on the part of some in the industry about the scope of this exclusion. This results in unnecessary alterations to the policy. The other is that a new wording is emerging some sections of the market which could be tar-reaching in its effect. The purpose of this article is to examine several aspects related to the exclusion. The first section examines the nature and extent of exposures in relation to radiation and nuclear energy and serves as background to under standing the exclusion wording. Section two provides the reasons for the inclusion of the clause and its historical origins. Section three addresses the intended scope of the current exclusion and the final section examines the scope of a new wording that is appearing and the possible implications that may result.

Studies on the mechanism of the peroxyoxalate chemiluminescence reaction Part 1. Confirmation of 1,2-dioxetanedione as an intermediate using 13C nuclear magnetic resonance spectroscopy

A simple model peroxyoxalate chemiluminescence system was monitored directly across a range of temperatures (from −80 to +20 °C) using ¹³C nuclear magnetic resonance spectroscopy. These experiments were made possible by the utilisation of ¹³C doubly labelled oxalyl chloride, which was reacted with anhydrous hydrogen peroxide in dry tetrahydrofuran. Ab initio quantum calculations were also performed to estimate the ¹³C nuclear magnetic resonance (NMR) shift of the most commonly postulated key intermediate 1,2-dioxetanedione and this data, in concert with the spectroscopic evidence, confirmed its presence during the reaction.