The difficulty of establishing causation in medical negligence cases : two recent Australian decisions

This editorial on health and guardianship law provides an overview of the causation issues that precluded the recovery of two medical negligence claims in the cases of Wallace v Kam [2013] HCA 19 and Waller v James [2013] NSWSC 497.

Pleading intention

This article considers the scope of the application of the civil liability legislation, an issue which is still being clarified by the courts, despite the passage of some ten years since the enactment of the non-uniform civil liability legislation across Australia. The introduction of the civil liability legislation has made more important the pleading of intention, in addition to negligence, so as to maximise damages awards. This involves pleading torts traditionally referred to as intentional torts – particularly trespass to the person. Such an approach is attractive for plaintiffs because, in several jurisdictions, tort claims which plead intention have been excluded from the operation of the legislative restrictions on the quantum of damages awards, and prohibitions on exemplary and aggravated damages. This approach reflects the policy that those who intend the harmful consequences of their actions should be held fully responsible.

Maintaining shared knowledge of acquaintance : methods people use to establish who knows whom

Acquaintance is a fundamental determinant of how people behave when interacting with one another. This article focuses on how this type of personal knowledge is an important consideration for people as social actors. Studying naturally-occurring social encounters, I describe how speakers use particular references to convey whether a recipient should be able to recognise a non-present third party. On some occasions, however, the presumption of recognisability or non-recognisability that underpins the use of a particular reference proves questionable. By exploring how recipients can challenge reference forms, and thereby reject claims of either recognisability or non-recognisability, I explain how people establish and maintain a shared understanding of who knows whom. I conclude by discussing motivations for this behaviour, and thereby contribute to understanding the commonsense reasoning that underpins orderly conduct in this aspect of social encounters.

Supporting context-aware process design : learnings from a design science study

Recent studies have started to explore context-awareness as a driver in the design of adaptable business processes. The emerging challenge of identifying and considering contextual drivers in the environment of a business process are well understood, however, typical methods and models for business process design do not yet consider this context. In this paper, we describe our work on the design of a method framework and appropriate models to enable a context-aware process design approach. We report on our ongoing work with an Australian insurance provider and describe the design science we employed to develop innovative and useful artifacts as part of a context-aware method framework. We discuss the utility of these artifacts in an application in the claims handling process at the case organization.

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)

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.

The voices of the exegesis : Composing the speech genres of the practitioner-researcher into a connective thesis

Postgraduate candidates in the creative arts encounter unique challenges when writing an exegesis (the written document that accompanies creative work as a thesis). As a practitioner-researcher, they must adopt a dual perspective–looking out towards an established field of research, exemplars and theories, as well as inwards towards their experiential creative processes and practice. This dual orientation provides clear benefits, for it enables them to situate the research within its field and make objective claims for the research methodologies and outcomes while maintaining an intimate, voiced relationship with the practice. However, a dual orientation introduces considerable complexities in the writing. It requires a reconciliation of multi-perspectival subject positions: the disinterested academic posture of the observer/ethnographer/analyst/theorist at times; and the invested, subjective stance the practitioner/producer at others. It requires the author to negotiate a range of writing styles and speech genres–from the formal, polemical style of the theorist to the personal, questioning and emotive voice of reflexivity. Moreover, these multi-variant orientations, subject positions, styles and voices must be integrated into a unified and coherent text. In this chapter I offer a conceptual framework and strategies for approaching this relatively new genre of thesis. I begin by summarizing the characteristics of what has begun to emerge as the predominant model of exegesis (the dual-oriented ‘Connective’ exegesis). Framing it against theoretical and philosophical understandings of polyvocality and matrixicality, I go on to point to recent textual models that provide precedents for connecting differently oriented perspectives, subjectivities and voices. I then turn to emergent archives of practice-led research to explain how the challenge of writing a ‘Connective’ exegesis has so far been resolved by higher degree research (HDR) candidates. Exemplars illustrate a range of strategies they have used to compose a multi-perspectival text, reconcile the divergent subject positions of the practitioner researcher, and harmonize the speech genres of a ployvocal text.

Malnutrition in Parkinson's disease and an individualised approach to its management

It has been reported that poor nutritional status, in the form of weight loss and resulting body mass index (BMI) changes, is an issue in people with Parkinson's disease (PWP). The symptoms resulting from Parkinson's disease (PD) and the side effects of PD medication have been implicated in the aetiology of nutritional decline. However, the evidence on which these claims are based is, on one hand, contradictory, and on the other, restricted primarily to otherwise healthy PWP. Despite the claims that PWP suffer from poor nutritional status, evidence is lacking to inform nutrition-related care for the management of malnutrition in PWP. The aims of this thesis were to better quantify the extent of poor nutritional status in PWP, determine the important factors differentiating the well-nourished from the malnourished and evaluate the effectiveness of an individualised nutrition intervention on nutritional status. Phase DBS: Nutritional status in people with Parkinson's disease scheduled for deep-brain stimulation surgery The pre-operative rate of malnutrition in a convenience sample of people with Parkinson's disease (PWP) scheduled for deep-brain stimulation (DBS) surgery was determined. Poorly controlled PD symptoms may result in a higher risk of malnutrition in this sub-group of PWP. Fifteen patients (11 male, median age 68.0 (42.0 – 78.0) years, median PD duration 6.75 (0.5 – 24.0) years) participated and data were collected during hospital admission for the DBS surgery. The scored PG-SGA was used to assess nutritional status, anthropometric measures (weight, height, mid-arm circumference, waist circumference, body mass index (BMI)) were taken, and body composition was measured using bioelectrical impedance spectroscopy (BIS). Six (40%) of the participants were malnourished (SGA-B) while 53% reported significant weight loss following diagnosis. BMI was significantly different between SGA-A and SGA-B (25.6 vs 23.0kg/m 2, p<.05). There were no differences in any other variables, including PG-SGA score and the presence of non-motor symptoms. The conclusion was that malnutrition in this group is higher than that in other studies reporting malnutrition in PWP, and it is under-recognised. As poorer surgical outcomes are associated with poorer pre-operative nutritional status in other surgeries, it might be beneficial to identify patients at nutritional risk prior to surgery so that appropriate nutrition interventions can be implemented. Phase I: Nutritional status in community-dwelling adults with Parkinson's disease The rate of malnutrition in community-dwelling adults (>18 years) with Parkinson's disease was determined. One hundred twenty-five PWP (74 male, median age 70.0 (35.0 – 92.0) years, median PD duration 6.0 (0.0 – 31.0) years) participated. The scored PG-SGA was used to assess nutritional status, anthropometric measures (weight, height, mid-arm circumference (MAC), calf circumference, waist circumference, body mass index (BMI)) were taken. Nineteen (15%) of the participants were malnourished (SGA-B). All anthropometric indices were significantly different between SGA-A and SGA-B (BMI 25.9 vs 20.0kg/m2; MAC 29.1 – 25.5cm; waist circumference 95.5 vs 82.5cm; calf circumference 36.5 vs 32.5cm; all p<.05). The PG-SGA score was also significantly lower in the malnourished (2 vs 8, p<.05). The nutrition impact symptoms which differentiated between well-nourished and malnourished were no appetite, constipation, diarrhoea, problems swallowing and feel full quickly. This study concluded that malnutrition in community-dwelling PWP is higher than that documented in community-dwelling elderly (2 – 11%), yet is likely to be under-recognised. Nutrition impact symptoms play a role in reduced intake. Appropriate screening and referral processes should be established for early detection of those at risk. Phase I: Nutrition assessment tools in people with Parkinson's disease There are a number of validated and reliable nutrition screening and assessment tools available for use. None of these tools have been evaluated in PWP. In the sample described above, the use of the World Health Organisation (WHO) cut-off (≤18.5kg/m2), age-specific BMI cut-offs (≤18.5kg/m2 for under 65 years, ≤23.5kg/m2 for 65 years and older) and the revised Mini-Nutritional Assessment short form (MNA-SF) were evaluated as nutrition screening tools. The PG-SGA (including the SGA classification) and the MNA full form were evaluated as nutrition assessment tools using the SGA classification as the gold standard. For screening, the MNA-SF performed the best with sensitivity (Sn) of 94.7% and specificity (Sp) of 78.3%. For assessment, the PG-SGA with a cut-off score of 4 (Sn 100%, Sp 69.8%) performed better than the MNA (Sn 84.2%, Sp 87.7%). As the MNA has been recommended more for use as a nutrition screening tool, the MNA-SF might be more appropriate and take less time to complete. The PG-SGA might be useful to inform and monitor nutrition interventions. Phase I: Predictors of poor nutritional status in people with Parkinson's disease A number of assessments were conducted as part of the Phase I research, including those for the severity of PD motor symptoms, cognitive function, depression, anxiety, non-motor symptoms, constipation, freezing of gait and the ability to carry out activities of daily living. A higher score in all of these assessments indicates greater impairment. In addition, information about medical conditions, medications, age, age at PD diagnosis and living situation was collected. These were compared between those classified as SGA-A and as SGA-B. Regression analysis was used to identify which factors were predictive of malnutrition (SGA-B). Differences between the groups included disease severity (4% more severe SGA-A vs 21% SGA-B, p<.05), activities of daily living score (13 SGA-A vs 18 SGA-B, p<.05), depressive symptom score (8 SGA-A vs 14 SGA-B, p<.05) and gastrointestinal symptoms (4 SGA-A vs 6 SGA-B, p<.05). Significant predictors of malnutrition according to SGA were age at diagnosis (OR 1.09, 95% CI 1.01 – 1.18), amount of dopaminergic medication per kg body weight (mg/kg) (OR 1.17, 95% CI 1.04 – 1.31), more severe motor symptoms (OR 1.10, 95% CI 1.02 – 1.19), less anxiety (OR 0.90, 95% CI 0.82 – 0.98) and more depressive symptoms (OR 1.23, 95% CI 1.07 – 1.41). Significant predictors of a higher PG-SGA score included living alone (β=0.14, 95% CI 0.01 – 0.26), more depressive symptoms (β=0.02, 95% CI 0.01 – 0.02) and more severe motor symptoms (OR 0.01, 95% CI 0.01 – 0.02). More severe disease is associated with malnutrition, and this may be compounded by lack of social support. Phase II: Nutrition intervention Nineteen of the people identified in Phase I as requiring nutrition support were included in Phase II, in which a nutrition intervention was conducted. Nine participants were in the standard care group (SC), which received an information sheet only, and the other 10 participants were in the intervention group (INT), which received individualised nutrition information and weekly follow-up. INT gained 2.2% of starting body weight over the 12 week intervention period resulting in significant increases in weight, BMI, mid-arm circumference and waist circumference. The SC group gained 1% of starting weight over the 12 weeks which did not result in any significant changes in anthropometric indices. Energy and protein intake (18.3kJ/kg vs 3.8kJ/kg and 0.3g/kg vs 0.15g/kg) increased in both groups. The increase in protein intake was only significant in the SC group. The changes in intake, when compared between the groups, were no different. There were no significant changes in any motor or non-motor symptoms or in "off" times or dyskinesias in either group. Aspects of quality of life improved over the 12 weeks as well, especially emotional well-being. This thesis makes a significant contribution to the evidence base for the presence of malnutrition in Parkinson's disease as well as for the identification of those who would potentially benefit from nutrition screening and assessment. The nutrition intervention demonstrated that a traditional high protein, high energy approach to the management of malnutrition resulted in improved nutritional status and anthropometric indices with no effect on the presence of Parkinson's disease symptoms and a positive effect on quality of life.

It takes more than good intentions : institutional and attitudinal impediments to engaging young people in participatory planning

While participatory processes have become an important part of planning, young people are a particularly vulnerable group in terms of potential marginalisation and exclusion from effective participation. Including the views of young people in participatory planning is not simply a matter of bringing them into existing processes. Instead, participatory processes must find ways to integrate and accommodate their needs and ways of expressing their views. Without these adjustments young people may simply move from being kept outside the planning process to a situation where, although they are formally included, their claims are not taken seriously and they are not treated with equal respect. In this paper we reflect on the success of a community advisory committee, formed to consider water planning issues, in integrating the views of young people into their deliberations. Using Iris Marion Young’s (1995) ideas of communicative democracy we highlight the challenges and opportunities presented by this participatory approach, as articulated by both the young people involved and the adult participants. We specifically consider how the elements of greeting, rhetoric and narrative were reflected in the committee process. We argue that both planners and adult participants need to ensure that participatory processes allow for the equal engagement of all participants and place equal value on their contributions. Our research shows that this involves both an institutional and attitudinal commitment to include the views of young people. The institutional commitment requires young people to be included in processes and for their involvement to be supported. However, the attitudinal commitment it is equally important and requires that adult participants be prepared not only to accept the views of younger participants but to actively encourage and support their full participation.

Of dogs, fish, birds and turds : the social construction of sewage pollution by recreational boaters

Animals are often used as ‘evidence’ of marine pollution. Take for instance the ubiquitous images of miserable oil-soaked marine birds following high profile oil spills such as the Exxon Valdez, Pacific Adventurer and Deepwater Horizon incidents or the images of bloated floating fish carcasses which are used to signal the presence of toxic pollutants. In recent years waste discharges from vessels have come under increased public and regulatory scrutiny both in Australia and around the world. International, regional, national and local restrictions are becoming more stringent for high profile marine pollutants such as oil as well as previously overlooked vessel-sourced pollutants such as sewage. Drawing upon media reports and recreational boater responses to government attempts to regulate the discharge of sewage from recreational vessels, this paper considers the important role played by animals in constructions of marine pollution by sewage and attributions of blame for this pollution. Specifically, this study found that recreational boat owners disputed claims their sewage management practices posed an environmental threat arguing that the sewage discharged was readily and eagerly consumed by fish in the receiving environment. Boat owners also argued that increased levels of bacteria which indicate the presence of faeces within the marine environment could be directly attributed to the excrement of marine mammals and birds or were the result of dog faeces being washed through municipal storm water systems rather than the result of vessel discharges. By contrast the contamination of oysters was provided as evidence of sewage pollution by other stakeholders.

Engaging young people : reflections from a participatory water planning exercise

While participatory processes have become an important part of water planning, young people are a particularly vulnerable group in terms of potential marginalisation and exclusion from effective participation. Including the views of young people in water planning is not simply a matter of bringing them into existing processes. Instead, processes must be modified to accommodate their needs and ways of expressing their views. Without these adjustments young people may simply move from being kept outside the process to a situation where although they are formally included, their claims are not taken seriously and they are not treated with equal respect. In this paper we reflect on the success of the community advisory committee, formed to develop the Gold Coast Waterfuture Strategy, in integrating the views of young people into their deliberations. Using Young's communicative democracy we highlight the challenges and opportunities presented by this approach, as articulated by both the young people involved and the adult participants, and specifically consider the how the elements of greeting, rhetoric and narrative were reflected in the committee process.

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.

Self-gifting guilt : an examination of self-gifting motivations and post-purchase regret

Purpose Self-gifting is a performative process in which consumers purchase products for themselves. The literature to date remains silent on a determination and connection between the extents of post-purchase regret resulting from self-gifting behavior. The purpose of this paper is to examine identification and connection of self-gifting antecedents, self-gifting and the effect on post purchase regret. Design/methodology/approach This study claims the two antecedents of hedonistic shopping and indulgence drive self-gifting behaviors and the attendant regret. A total of 307 shoppers responded to a series of statements concerning the relationships between antecedents of self-gifting behavior and the effect on post-purchase regret. Self-gifting is a multi-dimensional construct, consisting of therapeutic, celebratory, reward and hedonistic imports. Confirmatory factor analysis and AMOS path modeling enabled examination of relationships between the consumer traits of hedonistic shopping and indulgence and the four self-gifting concepts. Findings Hedonic and indulgent shoppers engage in self-gifting for different reasons. A strong and positive relationship was identified between hedonic shoppers and reward, hedonic, therapeutic and celebratory self-gift motivations. hedonic shoppers aligned with indulgent shoppers who also engaged the four self-gifting concepts. The only regret concerning purchase of self-gifts was evident in the therapeutic and celebratory self-gift motivations. Research limitations/implications A major limitation was the age range specification of 18 to 45 years which meant the omission of older generations of regular and experienced shoppers. This study emphasizes the importance of variations in self-gift behaviors and of post-purchase consumer regret. Originality/value This research is the first examination of an hedonic attitude to shopping and indulgent antecedents to self-gift purchasing, the concepts of self-gift motivations and their effect on post-purchase regret.

The problem of greenwash: Rhetorical elements in communicating environmental CSR practices

The field of rhetoric can be highly useful for researchers to focus on and understand the specific textual strategies used by organizations when communicating about CSR practices. To date however, while there have been studies that consider the use of rhetoric to communicate about environmental practices, there have been few studies that have used a rhetorical analysis to consider both green communication and public response to that communication as a way of understanding public issues with organizational practice. This study seeks to address this gap by using a rhetorical analysis of both environmental communication by organizations, and the claims made by a regulatory body acting on behalf of the public about why that communication was deemed ‘greenwash’ or inappropriate. In doing so, the paper applies a rhetorical analysis to understand the grounds on which environmental communication is deemed not legitimate, and suggests that whilst all three elements of ethos should be considered when communicating a CSR practice, the element of phronesis is the most crucial element, whereby organizations must ensure that they accurately justify any claims in relation to CSR.

Aboriginality and the Northern Territory intervention

This thesis examines the construction of Aboriginality in recent public policy reasoning through identifying representations deployed by architects and supporters of the Commonwealth’s 2007 Northern Territory Emergency Response (the intervention). Debate about the Northern Territory intervention was explicitly situated in relation to a range of ideas about appropriate Government policy towards Indigenous people, and particularly about the nature, role, status, value and future of Aboriginality and of Aboriginal people and Torres Strait Islanders. This project involves analysis of constructions of Aboriginality deployed in texts created and circulated to explain and justify the policy program. The aim of the project is to identify the ideas about Aboriginality deployed by the intervention’s architects and supporters, and to examine the effects and implications of these discourses for political relationships between Indigenous people and settlers in Australia. This thesis will argue that advocates of the Northern Territory intervention construct Aboriginality in a range of important ways that reassert and reinforce the legitimacy of the settler colonial order and the project of Australian nationhood, and operate to limit Aboriginal claims. Specifically, it is argued that in linking Aboriginality to the abuse of Aboriginal children, the intervention’s advocates and supporters establish a political debate about the nature and future of Aboriginality within a discursive terrain in which the authority and perspectives of Indigenous people are problematised. Aboriginality is constructed in this process as both temporally and spatially separated from settler society, and in need of coercive integration into mainstream economic and political arrangements. Aboriginality is depicted by settler advocates of intervention as an anachronism, with Aboriginal people and cultures understood as primitive and/or savage precursors to settlers who are represented as modern and civilised. As such, the communities seen as the authentic home or location of Aboriginality represent a threat to Aboriginal children as well as to settlers. These constructions function to obscure the violence of the settler order, provide justification or moral rehabilitation for the colonising project, and reassert the sovereignty of the settler state. The resolution offered by the intervention’s advocates is a performance or enactment of settler sovereignty, representing a claim over and through both the territory of Aboriginal people and the discursive terrain of nationhood.