PI claim clears the statute bar

In Hughes v Impulse Entertainment Pty Ltd & Workcover Queensland [2013] QDC 21 the plaintiff commenced a proceeding more than 60 days after the compulsory conference under the Workers Compensation and Rehabilitation Act 2003 (Qld). The question to be determined was whether this meant the claim was statute-barred under that Act, even though the relevant limitation period under the Limitation of Actions Act 1974 (Qld) had not expired

A human rights analysis of a claim for educational negligence in Australian schools

This thesis argues that an action in educational negligence should be available in Australia to provide a remedy for failure by schools and teachers to provide an adequate education as required by Australia’s human rights obligations. The thesis substantiates a duty of care to provide an adequate education under general principles of the law of negligence in appropriate cases. Although some protection exists for disabled students in Australia’s anti-discrimination and other legislation, non-disabled students are not afforded redress under existing causes of action. The educational negligence action provides a suitable remedy in an era of professional educational accountability.

Costs - solicitor's retainer on 'no win, no fee' basis - meaning of 'win' - solicitor not entitled to recover excess of costs over amount paid on settlement - no consideration for variation of oral retainer.

In Baker Johnson Lawyers v Jorgensen [2002] QDC 205 McGill DCJ considered the meaning of a 'no win, no fee' retainer and concluded that, in the absence of qualification by agreement, solicitors retained on that basis were not entitled to recover costs exceeding the amount of any judgment or settlement.

Personal injuries sustained in the course of employment - claim against employer under Workcover Queensland Act 1996

In Devlin v South Mole Island Resort [2003] QSC 020 the Court concluded the applicant was entitled to pursue a concurrent claim he alleged he had against the respondent under the Personal Injuries Proceedings Act 2002 in respect of injuries sustained in the course of employment, and also that the Workcover Queensland Act 1996 did not abolish the applicant's right to proceed against the respondent.

Book review - Richard Goldberg, Medicinal Product Liability and Regulation (Hart Publishing, Oxford, 2013) 214pp

In December 2013, settlement was reached between approximately 100 Australian and New Zealand Thalidomide victims and the company which had acted as the Australian distributor of the infamous drug, thus putting to rest the possibility of litigation. Around the same time, Thalidomide victims in the United Kingdom (UK) launched a similar bid for compensation against the manufacturer and distributor. It is clear that despite a lengthy amount of time having passed ever since the thalidomide disaster commenced in 1962, the controversy over compensation continues. Indeed, the author of Medicinal Product Liability and Regulation (published before the announcement of the British legal claim), Professor Goldberg, notes that claims for resulting birth defects continue to emerge right into the present day. His prescient insight into the contemporary relevance of compensation for pharmaceutical injuries thus makes Medicinal Product Liability and Regulation a very relevant addition to the small body of scholarship that is available on this rather specific and complex issue.

What now after the Dallas Buyers Club pirate claim is rejected as ‘surreal’?

The makers of Dallas Buyers Club have been dealt a blow in their attempt to extract payment from people alleged to have downloaded illegal copies of the movie. Voltage Pictures, which owns Dallas Buyers Club, has been trying to identify over 4,700 iiNet subscribers who it alleges downloaded illicit copies of the movie. Earlier this year, the Federal Court agreed that iiNet should hand over subscriber details, but warned that any letter sent to account holders must first be approved by the court to protect consumers from abuse of the legal system. In a win for consumer protection, the Federal Court has now rejected Voltage’s draft letters, criticising Voltage’s attempts to avoid explaining what fee it would demand.

Insurance contract disclosure – an uncertain balance

This article canvasses recent case law adjudicating the uneasy disclosure balance between the interests of the insurer and the insured in the process of transacting an insurance contract. It examines also the consequences of non-disclosure and misrepresentation and whether the avowed legislative intent — that the liability of the insurer in respect of a claim is to be reduced to the amount that would place the insurer in the position it would have been had the non-disclosure or misrepresentation not occurred — is being achieved in practice. As there is no doubt as to who bears the onus of proof as to non-disclosure or misrepresentation it is surprising that insurers continue to flounder in this regard in relation to underwriting guidelines and adherence to them. The article reviews recent case law in this context and stresses that an insurer wishing to preserve its capacity to avoid liability on the basis that it would not have entered into a contract at all had the true situation been known to it must maintain detailed underwriting guidelines supported by consistent adherence to those guidelines. Recent case law also emphasises that the insurer must provide clear and cogent admissible evidence from appropriate personnel and officers of the company to discharge its onus.

Field assessment of the resistance of timber products to termite (Isoptera) damage: Results can change with the amount of bait wood

Whether or not termites initiate damage to timber via the end grain may determine the need for spot-treating the exposed untreated cut ends of envelope-treated softwood framing material. Australian Coptotermes acinaciformis (Froggatt) were field-tested for their ability to initiate feeding via the end grain of timber (35 × 90 mm) treated with a repellent Tanalith® T envelope. Specimens of commercial radiata pine Pinus radiata D.Don framing timber (untreated) and slash pine Pinus elliottii Englem. (untreated and envelope-treated) were partially clad in fine stainless steel mesh. Clad and unclad specimens were exposed to C. acinaciformis near Townsville, North Queensland, Australia, for four months. Results showed that this species of termite can indeed damage timber via the end grain, including exposed untreated cut ends of envelope-treated material as demonstrated earlier for different populations of C. acinaciformis. Differences between the test conditions in field trials carried out at different times (where C. acinaciformis either did or did not damage timber via the end grain) are discussed. Clearly, outcomes from field studies with preservative-treated materials are dependent upon experimental conditions. Notably, the amount of bait wood (highly termite-susceptible timber substrate) offered in a given method can strongly influence the termite response. Further investigation is required to standardise this aspect of conditions in protocols for the assessment of wood preservatives.

An abuse of process - traditionally: Smith v Lucht [2014] QDC 302

In Smith v Lucht [2014] QDC 302 McGill DCJ considered whether in Queensland the concept of abuse of process was sufficiently broad as to encompass circumstances in which the resources of the court and the parties to be expended to determine the claim were out of all proportion to the interest at stake. Stay of proceedings - abuse of process - whether disproportionality between interest at stake and costs of litigating may amount to abuse of process - plaintiff with good cause of action entitled to pursue it.

Documents regarding number of recipients and amount of cash distributed; Juedische Winterhilfe der Juedische Gemeinde; Berlin Jewish Institutions

"25851 Personen betreute die Juedische Winterhilfe mit Regelleistungen. 2300 Barbeihilfen im Werte von 54000 Mark wurden an Betreute gezahlt"

Digestion of forages in the rumen is increased by the amount but not the type of protein supplement

Three polyester bag experiments were conducted with fistulated Bos indicus steers to determine the effect of the amount and type of nitrogen (N) supplement on the digestion rate of forages different in quality. In Experiment 1, test substrates were incubated in polyester bags in the rumen of steers fed ryegrass, pangola grass, speargrass and Mitchell grass hays in a 4 by 4 Latin-square design. In Experiment 2, test substrates were incubated in polyester bags in the rumen of steers fed speargrass hay supplemented with urea and ammonium sulfate (US), branched-chain amino acids with US (USAA), casein, cottonseed meal, yeast and Chlorella algae in a 7 by 3 incomplete Latin-square design. In Experiment 3, test substrates were incubated in polyester bags in the rumen of steers fed Mitchell grass hay supplemented with increasing amounts of US or Spirulina algae (Spirulina platensis). The test substrates used in all experiments were speargrass, Mitchell grass, pangola grass or ryegrass hays. Digestion rate of the ryegrass substrate was higher than that of the speargrass substrate (P < 0.05) in Experiment 1. Supplementation with various N sources increased the degradation rate and effective degradability of all incubated substrates above that apparent in Control steers (P < 0.05; Experiment 2). Supplementation of US and Spirulina increased degradation rate and effective degradability of ryegrass, pangola grass and Mitchell grass substrates above that apparent in Control steers (P < 0.05; Experiment 3). However, there was no further response on digestion rate of the substrates in increasing supplementation levels either for US or Spirulina. In conclusion, rate of digestion was affected by forage physical and anatomical properties. Supplementation with various N sources increased rate of digestion when the Control forage ration was very low in N but once a minimum level of N supplementation was reached, irrespective of form of N or other potential growth factors, there was no further increase in rate of digestion.

Novel signal demodulation technique to estimate the amount of chirp in fiber Bragg gratings

A novel detection technique to estimate the amount of chirp in fiber Bragg gratings (FBGs) is proposed. This method is based on the fact that reflectivity at central wavelength of FBG reflection changes with strain/temperature gradient (linear chirp) applied to the same. Transfer matrix approach was used to vary different grating parameters (length, strength and apodization) to optimize variation of reflectivity with linear chirp. Analysis is done for different sets of `FBG length-refractive index strength' combinations for which reflectivity vary linearly with linear chirp over a decent measurement range. This article acts as a guideline to choose appropriate grating parameters in designing sensing apparatus based on change in reflectivity at central wavelength of FBG reflection.

Influence Of Different Amount Of Au On The Wetting Behavior Of Pdms Membrane

Polydimethylsiloxane (PDMS) has been widely used as a base material for bio-MEMS/NEMS devices. It is difficult for PDMS to transfer and spread aqueous solution as a kind of highly hydrophobic material. Therefore, surface modification is necessary for PDMS to make it hydrophilic. In this paper, a method of hydrophilization of PDMS surface is proposed. Gold is sputtered to the PDMS substrate by sputter coater in different average thicknesses. Relationship between the average thickness of gold on the PDMS substrate and the contact angle of the surface was studied. It was found that even gold of average thickness less than 1 nm can result in about 25 degrees change of contact angle. AFM is also used to get topographic information of PDMS surface coated with gold. Three cases are classified with different amount of Au: (1) Heterogeneous zone; (2) Transition zone; (3) Film zone. For heterogeneous zone, a simple model about heterogeneous phase wetting is put forward to interpret this phenomenon.

A qualificação do lucro da intervenção:responsabilidade civil ou enriquecimento sem causa?

O presente estudo tem por objetivo demonstrar que, nas hipóteses em que alguém intervém na esfera jurídica alheia e obtém benefícios econômicos sem causar danos ao titular do direito ou, causando danos, o lucro obtido pelo ofensor é superior aos danos causados, as regras da responsabilidade civil, isoladamente, não são suficientes, à luz do ordenamento jurídico brasileiro, enquanto sanção eficaz pela violação de um interesse merecedor de tutela. Isto porque, como a principal função da responsabilidade civil é remover o dano, naquelas hipóteses, não fosse a utilização de um remédio alternativo, o interventor faria seu o lucro da intervenção, no primeiro caso integralmente e, no segundo, no valor equivalente ao saldo entre o lucro obtido e a indenização que tiver que pagar à vítima. A tese pretende demonstrar que o problema do lucro da intervenção não deve ser solucionado por intermédio das regras da responsabilidade civil, devendo, portanto, ser rejeitadas as propostas de solução neste campo, como a interpretação extensiva do parágrafo único, do artigo 944, do Código Civil, as indenizações punitivas e o chamado terceiro método de cálculo da indenização. Como alternativa, propõe-se o enquadramento dogmático do lucro da intervenção no enriquecimento sem causa, outorgando ao titular do direito uma pretensão de restituição do lucro obtido pelo ofensor em razão da indevida ingerência em seus bens ou direitos. Defende-se que a transferência do lucro da intervenção para o titular do direito tem por fundamento a ponderação dos interesses em jogo à luz da Constituição Federal, com especial atenção ao princípio da solidariedade, e da teoria da destinação jurídica dos bens. A tese procura demonstrar, ainda, que o ordenamento jurídico brasileiro não exige um efetivo empobrecimento do titular do direito para a configuração do enriquecimento sem causa e que a regra da subsidiariedade não impede a cumulação de ações, de responsabilidade civil para eliminar o dano (e no limite do dano), e de enriquecimento sem causa, para forçar a restituição do saldo positivo que permanecer no patrimônio do ofensor após o pagamento da indenização, se houver. Finalmente, a tese pretende provocar a discussão acerca da quantificação do objeto da restituição, propondo alguns critérios que deverão orientar o aplicador do direito.