Honesty about adverse event : more honoured in the breach than in the observance?

Part of the chapter: "Sale of Sperm, Health Records, Minimally Conscious States, and Duties of Candour" Although ethical obligations and good medical practice guidelines clearly contemplate open disclosure, there is a dearth of authority as to the nature and extent of a legal duty on Australian doctors to disclose adverse events to patients.

What the plaintiff would have done in informed consent cases

Both at common law and under the various civil liability acts, in deciding liability for breach of duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. For plaintiffs in medical negligence claims founded on negligent failure to provide sufficient information (informed consent cases), this onus involves persuading the court to make a favourable determination as to what a particular patient would have done (from a subjective perspective) in the hypothetical situation of the defendant not being negligent (that is, in the event that the medical practitioner had provided sufficient information to the patient)

A case study of pedagogical responses to internationalisation at a faith-based secondary school in Australia

This case study investigated pedagogical responses to internationalisation by a faith-based secondary school in Australia. Using social constructivism as the theoretical framework the study examined teaching and learning for culturally and linguistically diverse students. Data generated through questionnaires, focus groups, individual interviews and document archives were analysed and interpreted using thematic analysis. The findings showed that teachers believed themselves to be ill-equipped to teach international students. Their concerns centred on a lack of explicit pedagogical, cultural and linguistic knowledge to help the students acculturate and learn. Recommendations include the dissemination of school policies to teachers, intentional staff collaboration and professional development to address the teachers’ needs for internationalisation.

Justice for pollution-victims in China and Australia

The concept of environmental justice is well developed in North America, but is still at the evolutionary stage in most other jurisdictions around the globe. This paper seeks to explore two jurisdictions where incidents of environmental justice are likely to be seen in the future as a result of manufacturing and mining practices. The discussion will centre upon avenues to environmental justice for both private citizens and the public at large. The first jurisdiction considered is China, where environmental liability claims brought by Chinese citizens have increased at an annual average of 25% (Yang 2011). Manufacturing is at the core of the Chinese economy and is responsible for some of the unprecedented economic growth in the region. Less discussed are the industry impacts on water and air pollution levels and the associated implications of these pollutants on local communities. China introduced the Tort Liability Law (TLL) in 2010, which may provide avenues to justice for private citizens. The other jurisdiction considered by the paper is Australia, where the mining boom has buffered the Australian economy from the global financial crisis. There is some limited case law in Australia where private citizens have made a claim in toxic torts; however the framework is underdeveloped in terms of the significant risks facing indigenous and local communities in mining areas and also by comparison to the developments of the TLL framework in China. This paper traces the regulatory responses to the affects of major industries on communities in China and Australia. From this it examines the need for environmental justice avenues that align with rule of law principles.

Assessment of damages for wrongful birth and consolidation in advance care directives

The recent decision of Waller v James involved a claim by the plaintiff parents for damages for wrongful birth against the defendant doctor, Dr James, a gynaecologist with a practice in infertility and IVF procedures, who had been consulted by the plaintiffs. The second plaintiff, Mr Waller suffered an inherited anti-thrombin deficiency (ATD), a condition which results in a propensity for the blood to clot, at least in adults. Dr James subsequently recommended IVF treatment. The first plaintiff, Mrs Waller became pregnant after the first cycle of IVF treatment. Her son Keeden was born on 10 August 2000 with a genetic anti-thrombin deficiency. Keeden was released from hospital on 14 August 2000. However, he was brought back to the hospital the next day with cerebral thrombosis (CSVT). As a result of the thrombosis, he suffered permanent brain damage, cerebral palsy and related disabilities. The plaintiffs alleged that the defendant was in breach of contract and his common law duty of care to the plaintiffs in failing to inform them, or cause them to be informed, of the hereditary aspects of ATD. They further alleged that, had they been properly informed, they would not have proceeded to conceive a child using the male plaintiff’s sperm and therefore avoided the harm that had befallen them. The plaintiffs claimed damages to compensate them for their losses, including psychiatric and physical injuries and the costs of having, raising and caring for Keeden. The defendant was held to be not liable in negligence by Justice Hislop of the Supreme Court of New South Wales because a finding was made on medical causation which was adverse to the plaintiffs claim.

The state of the art defence : defining the Australian experience in the context of pharmaceuticals

One of the defences within Part 3-5 of the Australian Consumer Law is the state of the art, or development risk defence. This defence, although significant, has often been neglected in Australian jurisprudential analysis and has triggered at most generic academic analysis. However, with the rise of pharmaceutical and medical device litigation in Australia, it could become a vital weapon for Australian manufacturers against product liability claims. This paper will firstly review the two ways this defence could operate. It will also discuss the three types of defects which the defence could apply to. This paper aims to determine exactly when and how this defence should apply in Australia, in the context of pharmaceutical product liability claims.

An analysis of Australia's legal regime for imposing liability on manufacturers of pharmaceutical drugs

Following a trial in June 2009 where the Federal Court heard submissions regarding whether Merck Sharpe and Dohme Australia should be held liable for an increased risk of cardiovascular conditions noted in patients who had taken the anti-inflammatory drug Vioxx, a judgment was handed down against MSDA in March 2010. MSDA appealed to the Full Federal Court, where they were successful. Special leave to appeal to the High Court of Australia was rejected in May 2012. This article will examine the themes raised in the trial judgment and the appropriateness of Australia’s statutory consumer protection regime through the lens of pharmaceutical drug injuries and side effects.

Inward internationalization of consumer services : lessons from Australian firms

Purpose - The aim of this paper is to explore the inward internationalization process of consumer services. A review of the service internationalization literature is conducted and the resource-based view of the firm is used as a theoretical approach. Design/methodology - Case study methodology is used to explore the internationalization process of five different consumer service sectors: tourism, education, accommodation, transport and entertainment. The main data collection method was interviews conducted with top managers of 12 Australian consumer service firms from these sectors. Findings - Findings of this study show that inward internationalizing services confront most of their barriers, such as immigration policies, exchange rate fluctuations, and cultural differences, in the domestic market where the service is provided. The findings also suggest that superior intentional performance for consumer service firms combines firm-specific resources and capabilities, such as market orientation, service quality, cultural sensitivity, international communicational activities, partnerships and networks, with country-specific resources and capabilities, such as country-of-origin image and government support. Research limitations/implications - This is one of the few studies in the academic literature that directly addresses the issue of inward internationalization of consumer services. Limitations derive from the qualitative nature of this study. Practical implications - The process of inward internationalization applies to a broad range of service industries and can assist firms to develop more effective international marketing strategies. Originality/value - This study contributes to the international services literature by identifying the main barriers and drivers of international performance for inward internationalizing consumer service firms, which is a topic that has been neglected in the literature.

Asking for it? Practices and structures that perpetuate employee silence in pursuing customised work arrangements

A component of broader scholarship addressing the social context in which individuals work, has focused on the role of ‘employee voice’ in determining flexible-work outcomes (Donnelly et al., 2012). Employee voice incorporates a spectrum of practices designed to give employees a say in organisational decisions (Dundon et al., 2004). This paper extends work on voice and workplace flexibility in two ways. First, it focuses not simply on ‘voice’ but on its antithesis, employee silence, which is defined (following Van Dyne et al., 2003) as the intentional withholding of ideas and opinions. We utilise an alternative reading of silence to the majority of literature which interprets it as a product of employee motivation, by focusing on the role of management and by adopting a framework which considers silence as a control dialectic (Donaghey et al., 2011). Second, the study examines silence with respect to preferences for customising the terms/conditions of employment beyond narrowly defined notions of ‘flexible work’ (e.g., reduced hours; home-working). The study utilises 30 telephone interviews with employees who had been previously identified as ‘discontent non-requesters’ (Skinner and Pocock, 2011: 75), that is they had expressed a desire to request flexible working provisions, but had not done so. Interviewees were asked to articulate the reasons for, and consequences of, their silence. The findings reveal nuanced workplace practices and structures that close down possibilities for employee voice and perpetuate silence on matters relating to customising work. They also illustrate a disjuncture between espoused organizational goals and everyday practices and norms encountered in workplaces.

The sound of silence : the absence of voice in determining flexible working arrangements

In the context of a dramatically reconfigured labour market characterized by an individualistic culture and increasingly enmeshed life domains of employees, there is raised awareness of how employees may shape or modify their work arrangements. A small component of broader scholarship addressing issues that affect the social context in which individuals work, has focused on the role of ‘employee voice' in determining flexible-work outcomes (Donnelly et al., 2012). Employee voice is a broad term incorporating a spectrum of different practices designed to give employees a say in organisational issues and decisions (Dundon et al., 2004). This article extends work on voice and workplace flexibility by focusing not simply on ‘voice' but on its antithesis: employee silence. Silence is defined here, (following Van Dyne et al., 2003), as the intentional withholding of ideas, information and opinions. The consequences of employee silence in achieving work-life preferences are likely to be significant for both individuals and organizations, in achieving for example, the goals of business efficiency and facilitating employees' needs to fulfill multiple roles and minimize work-life interference.

An examination of the liability of a construction contract certifier who gets it wrong

Construction contracts often provide that decisions under the contract will be made by a certifier. This paper reviews the liability issues when a certifier makes a mistake. We do that in light of recent pronouncements by the High Court of Australia and the New South Wales Court of Appeal on negligence. We look at this question in the context of traditional construction contract arrangements and also consider the implications for Public Private Partnerships and the typical contract arrangements entered into to facilitate these transactions.

Honesty about adverse events - more honoured in the breach than in the observance

The medical board of Australia Code of conduct reminds doctors that" "When adverse events occur, you have a responsibility to be open and honest in your communication with your patient, to review what has occurred and to report appropriately." More honoured in the breach rather than the observence may or may not be correct. Faced with the English concerns and the Netherlands research, an evidence based assessment of compliance with the ethical duty to disclose adverse events is warranted.

The landlord's duty and unsafe premises

Case note on Sheehy v Hobbs [2012]. It is well established that a landlord owes a tenant a duty of care to “take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household”.1 What often arises is the question of how far the scope of that duty extends. In Sheehy v Hobbs [2012] QSC 333 the plaintiff was injured when she fell down a flight of internal stairs of the townhouse she leased from the defendants. The plaintiff claimed damages for a breach of duty owed to her in negligence, and also alleged breaches of the duties owed to her pursuant to s 103 of the Residential Tenancies Act 1994 (Qld) and her tenancy agreement.

Failure to administer a drug and causation

Case note on King v Western Sydney Local Health Network In King v Western Sydney Local Health Network [2013] NSWCA 162 the appellant sought damages for the severe physical and intellectual disability she suffered as a result of foetal varicella syndrome (FVS) caused by her mother contracting varicella (chickenpox) in the second trimester of her pregnancy. The mother had been exposed to the virus and sought advice from a doctor at Blacktown Hospital as she had not had the virus herself and therefore did not possess immunity. In such circumstances at the time, the standard medical practice was to offer the mother varicellazoster immunoglobulin (VZIG) to boost her defence to the virus. The appellant’s mother however was not offered this treatment and contracted chickenpox resulting the appellant’s condition...

Vulnerability held not to be pre-requisite for establishing a duty of care in claims of pure economic Loss

Case note Apache Energy Ltd v Alcoa of Australia Ltd (No 2) [2013] In 2011, headlines were made when Alcoa sued Apache Energy and its partners for $158 million, a loss it claimed was a consequence of Apache Energy failing to adequately inspect and maintain the gas pipelines that supplied the gas used by Alcoa in its business. As the loss was not a consequence of any property damage or injury to Alcoa, the loss is characterised as pure economic loss...