Disclosure obligations - Personal Injuries Proceedings Act 2002

In Huag v Jupiters Limited [2007] QSC 068, Lyons J considered the extent of the obligations imposed upon a respondent under the Personal Injuries Proceedings Act 2002 to disclose documents and information.

Practice & procedure : disclosure obligations - Personal Injuries Proceedings Act 2002 s27

In Huag v Jupiters Limited [2007] QCA 199 the Queensland Court of Appeal allowed an appeal from interlocutory orders made in the trial division of the court and concluded that, although provisions such as s27 of the Personal Injuries Proceedings Act 2002 (Qld) should be given a broad, remedial construction, this did not mean the words of limitation in the section could be ignored.

Liability in negligence and the failure to disclose multiple risks in surgery : I would have been willing to run the risk

It has been 21 years since the decision in Rogers v Whitaker and the legal principles concerning informed consent and liability for negligence are still strongly grounded in this landmark High Court decision. This paper considers more recent developments in the law concerning the failure to disclose inherent risks in medical procedures, focusing on the decision in Wallace v Kam [2013] HCA 19. In this case, the appellant underwent a surgical procedure that carried a number of risks. The surgery itself was not performed in a sub-standard way, but the surgeon failed to disclose two risks to the patient, a failure that constituted a breach of the surgeon’s duty of care in negligence. One of the undisclosed risks was considered to be less serious than the other, and this lesser risk eventuated causing injury to the appellant. The more serious risk did not eventuate, but the appellant argued that if the more serious risk had been disclosed, he would have avoided his injuries completely because he would have refused to undergo the procedure. Liability was disputed by the surgeon, with particular reference to causation principles. The High Court of Australia held that the appellant should not be compensated for harm that resulted from a risk he would have been willing to run. We examine the policy reasons underpinning the law of negligence in this specific context and consider some of the issues raised by this unusual case. We question whether some of the judicial reasoning adopted in this case, represents a significant shift in traditional causation principles.

Supreme Court Act 1995 s48 - Interest on judgment for damages for personal injuries

The case of Flynn v The Maryborough Sugar Factory Limited [2003] QDC 446 the plaintiff had been awarded damages for personal injuries and there was a charge on those damages under a Commonwealth statute, with a provision in the statute that damages could not be satisfied until the Commonwealth had been paid. The Court considered the point of considerable practical significance of whether interest accrued on the judgment under s48 of the Supreme Court Act 1995 (Qld) before the defendant had obtained clearances under the Commonwealth legislation.

Damages for personal injuries in Queensland : interest please!

The article revises established principles relating to the awarding of damages to the date of judgment and discusses decisions in the High Court and in the Supreme Court of Queensland which have caused significant changes to the manner of assessments of interest. Its purpose is to provide for practitioners involved in personal injuries litigation in Queensland a current set of guidelines as to the manner in which the wide discretion to award interest may be expected to be exercised.

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.

Disclosure of documents and limitation of actions

This article considers the decisions in Stephan v NRMA Insurance Limited [2001]QDC 002 and Bertha v Dragut [2001] QDC 003

Sequential monitoring of hospital adverse events when control charts fail : the example of fall injuries in hospitals

Objective To evaluate methods for monitoring monthly aggregated hospital adverse event data that display clustering, non-linear trends and possible autocorrelation. Design Retrospective audit. Setting The Northern Hospital, Melbourne, Australia. Participants 171,059 patients admitted between January 2001 and December 2006. Measurements The analysis is illustrated with 72 months of patient fall injury data using a modified Shewhart U control chart, and charts derived from a quasi-Poisson generalised linear model (GLM) and a generalised additive mixed model (GAMM) that included an approximate upper control limit. Results The data were overdispersed and displayed a downward trend and possible autocorrelation. The downward trend was followed by a predictable period after December 2003. The GLM-estimated incidence rate ratio was 0.98 (95% CI 0.98 to 0.99) per month. The GAMM-fitted count fell from 12.67 (95% CI 10.05 to 15.97) in January 2001 to 5.23 (95% CI 3.82 to 7.15) in December 2006 (p<0.001). The corresponding values for the GLM were 11.9 and 3.94. Residual plots suggested that the GLM underestimated the rate at the beginning and end of the series and overestimated it in the middle. The data suggested a more rapid rate fall before 2004 and a steady state thereafter, a pattern reflected in the GAMM chart. The approximate upper two-sigma equivalent control limit in the GLM and GAMM charts identified 2 months that showed possible special-cause variation. Conclusion Charts based on GAMM analysis are a suitable alternative to Shewhart U control charts with these data.

Women and ADR

Alternative dispute resolution, or ‘ADR’, is defined by the National Alternative Dispute Resolution Advisory Council as: … an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance. A broad range of ADR processes are used in legal practice contexts, including, for example, arbitration, conciliation, mediation, negotiation, conferencing, case appraisal and neutral evaluation. Hybrid processes are also used, such as med-arb in which the practitioner starts by using mediation, and then shifts to using arbitration. ADR processes generally fall into one of three general categories: facilitative, advisory or determinative. In a facilitative process, the ADR practitioner has the role of assisting the parties to reach a mutually agreeable outcome to the dispute by helping them to identify the issues in dispute, and to develop a range of options for resolving the dispute. Mediation and facilitated negotiation are examples of facilitative processes. ADR processes that are advisory involve the practitioner appraising the dispute, providing advice as to the facts of the dispute, the law and then, in some cases, articulating possible or appropriate outcomes and how they might be achieved. Case appraisal and neutral evaluation are examples of advisory processes. In a determinative ADR process, the practitioner evaluates the dispute (which may include the hearing of formal evidence from the parties) and makes a determination. Arbitration is an example of a determinative ADR process. The use of ADR processes has increased significantly in recent years. Indeed, in a range of contemporary legal contexts the use of an ADR process is now required before a party is able to file a matter in court. For example, Juliet Behrens discusses in Chapter 11 of this book how the Family Law Act 1975 (Cth) now effectively mandates attendance at pre-filing family dispute resolution in parenting disputes. At the state level, in Queensland, for example, attendance at a conciliation conference can be required in anti-discrimination matters, and is encouraged in residential tenancy matters, and in personal injuries matters the parties must attend a preliminary compulsory conference. Certain ADR processes are used more commonly in the resolution of particular disputes. For example, in family law contexts, mediation and conciliation are generally used because they provide the parties with flexibility in terms of process and outcome while still ensuring that the negotiations occur in a positive, structured and facilitated framework. In commercial contexts, arbitration and neutral evaluation are often used because they can provide the parties with a determination of the dispute that is factually and legally principled, but which is also private and more timely than if the parties went to court. Women, as legal personalities and citizens of society, can find themselves involved in any sort of legal dispute, and therefore all forms of ADR are relevant to women. Perhaps most commonly, however, women come into contact with facilitative ADR processes. For example, through involvement in family law disputes women will encounter family dispute resolution processes, such as mediation. In this chapter, therefore, the focus is on facilitative ADR processes and, particularly, issues for women in terms of their participation in such processes. The aim of this chapter is to provide legal practitioners with an understanding of issues for women in ADR to inform your approach to representing women clients in such processes, and to guide you in preparing women clients for their participation in ADR. The chapter begins with a consideration of the ways in which facilitative ADR processes are positive for women participants. Next, some of the disadvantages for women in ADR are explored. Finally, the chapter offers ways in which legal practitioners can effectively prepare women clients for participation in ADR. Before embarking on a discussion of issues for women in ADR, it is important to acknowledge that women’s experiences in these dispute resolution environments, whilst often sharing commonalities, are diverse and informed by a range of factors specific to each individual woman; for example, her race or socio-economic background. This discussion, therefore, addresses some common issues for women in ADR that are fundamentally gender based. It must be noted, however, that providing advice to women clients about participating in ADR processes requires legal practitioners to have a very good understanding of the client as an individual, and her particular needs and interests. Some sources of diversity are discussed in Chapters 13, 14 and 15.

Proteomics in chronic wound research : potentials in healing and health

Chronic wounds, such as venous and diabetic leg ulcers, represent a significant health and financial burden to individuals and healthcare systems. In worst case scenarios this condition may require the amputation of an affected limb, with significant impact on patient quality of life and health. Presently there are no clinical biochemical analyses used in the diagnosis and management of this condition; moreover few biochemical therapies are accessible to patients. This presents a significant challenge in the efficient and efficacious treatment of chronic wounds by medical practitioners. A number of protein-centric investigations have analysed the wound environment and implicated a suite of molecular species predicted to be involved in the initiation or perpetuation of the condition. However, comprehensive proteomic investigation is yet to be engaged in the analysis of chronic wounds for the identification of molecular diagnostic/prognostic markers of healing or therapeutic targets. This review examines clinical chronic wound research and recommends a path towards proteomic investigation for the discovery of medically significant targets. Additionally, the supplementary documents associated with this review provide the first comprehensive summary of protein-centric, small molecule and elemental analyses in clinical chronic wound research.

The functional significance of fruit exocarp on host selection and oviposition by Queensland fruit fly, Bactrocera tryoni (Froggatt) (Tephritidae: Diptera)

Queensland fruit fly is Australia's most serious insect pest of horticulture. The fly lays its eggs into fruit, where they hatch into maggots which destroy the fruit. Understanding egg laying behaviour, known as oviposition, is a critical but under-researched aspect of fruit fly biology. This thesis focused on three aspects of oviposition: the role of fruit peel as a physical barrier to oviposition; the quality of fruit for maggot development; and the structure and wear of the egg laying organ – the ovipositor. Results showed that flies selected fruit based on their suitability for offspring survival, not because of the softness or hardness of fruit peel. Previously reported use of holes or wounds in fruit peel by ovipositing females was determined to be a mechanism which saved the female time, not a mechanism to reduce ovipositor wear. The results offer insights into the evolution of host use by fruit flies and their sustainable management.

Alcohol-related emergency department injury presentations in Queensland adolescents and young adults over a 13-year period

Introduction and Aims. The rate of alcohol-related emergency department (ED) presentations in young people has increased dramatically in recent decades. Injuries are the most common type of youth alcohol-related ED presentation, yet little is known about these injuries in young people. This paper describes the characteristics of alcohol-related ED injury presentations in young people over a 13-year period and determines if they differ by gender and/or age group (adolescents: 12–17 years; young adults: 18–24 years). Design and Method. The Queensland Injury Surveillance Unit (QISU) database collects injury surveillance data at triage in participating EDs throughout Queensland, Australia. A total of 4667 cases of alcohol-related injuries in young people (aged 12–24 years) were identified in the QISU database between January 1999 and December 2011, using an injury surveillance code and nursing triage text-based search strategy. Results. Overall, young people accounted for 38% of all QISU alcohol-related ED injury presentations in patients aged 12 years or over. The majority of young adults presented with injuries due to violence and falls, whereas adolescents presented due to self-harm or intoxication without other injury. Males presented with injuries due to violence, whereas females presented with alcohol-related self-harm and intoxication. Discussion and Conclusions. There is a need for more effective ways of identifying the degree of alcohol involvement in injuries among young people presenting to EDs.

The court and the factory the legal construction of occupational health and safety offences in Victoria

This thesis reports on an empirically based study of the manner in which Victorian Magistrates Courts constructed occupational health and safety (OHS) issues when hearing prosecutions for offences under the Industrial Safety, Health and Welfare Act 1981 (the ISHWA) and the Occupational Health and Safety Act 1985 (OHSA) from 1983 to 1991. These statutes established OHS standards for employers and other relevant parties. The State government enforced these standards through an OHS inspectorate which had a range of enforcement powers, including prosecution. After outlining the historical development of Victoria’s OHS legislation, the magistracy’s historical role in its enforcement, and the development of an enforcement culture in which inspectors viewed prosecution as a last resort, the study shows how the key provisions of the ISHWA and OHSA required occupiers of workplaces and employers to provide and maintain safe systems of work, including the guarding of dangerous machinery. Using a wide range of empirical research methods and legal materials, it shows how the enforcement policies, procedures and practices of the inspectorate heavily slanted inspectors workplace investigations and hence prosecutions towards a restricted and often superficial, analysis of incidents (or “events”) most of which involved injuries on machinery. There was evidence, however, that after the establishment of the Central Investigation Unit in 1989 cases were more thoroughly investigated and prosecuted. From 1990 the majority of prosecutions were taken under the employer’s general duty provisions, and by 1991 there was evidence that prosecutions were focusing on matters other than machinery guarding.

The effect of previous hamstring strain injuries on the change in eccentric hamstring strength during preseason training in elite Australian footballers

Background Hamstring strain injuries (HSIs) are the most common injury type in Australian football and the rate of recurrence has been consistently high for a number of years. Long lasting neuromuscular inhibition has been noted in previously injured athletes but it is not known if this influences athletes adaptive response to training. Purpose To determine if elite Australian footballers with a prior unilateral HSI (previously injured group) display lesser improvements in eccentric hamstring strength during pre-season training compared to athletes without a history of HSI (control group). Study design Prospective cohort study. Methods Ninety-nine elite Australian footballers participated (17 with a history of unilateral HSI in the previous 12 month period). Eccentric hamstring strength was assessed at the start and end of pre-season training using an instrumented Nordic hamstring device. Change in eccentric strength across preseason was determine in absolute terms and normalised to start of preseason strength. Start of preseason strength was used as a covariate to control for differences in starting strength. Results The left and right limbs in the control group showed no difference in absolute or relative change (left limb absolute change, 60.7±72.9N; relative change, 1.28±0.34; right limb absolute change, 48.6±83.8N; relative change, 1.24±0.43) . Similarly, the injured and uninjured limbs from the previously injured group showed no difference for either absolute or relative measures of change (injured limb absolute change, 13.1±57.7N; relative change, 1.07±0.18; uninjured limb absolute change, 14.7±54.0N; relative change, 1.07±0.22N). The previously injured group displayed a significantly lesser increase in eccentric hamstring strength across the preseason (absolute change, 13.9±55.0; relative change, 1.07±0.20) compared to the control group (absolute change, 54.6±78.5; relative change, 1.26±0.39) for both absolute and relative measures (p < 0.001), even after controlling for differences in start of pre-season eccentric hamstring strength, which had a significant effect on strength improvement. Conclusion Elite Australian footballers with a unilateral HSI history displayed lesser improvements in eccentric hamstring strength across preseason training. The smaller improvements were not restricted to the previously injured limb as the contralateral limb also displayed similarly small improvements in eccentric strength. Whether this is the cause of or the result of injury remains to be seen, but it has the potential to contribute to the risk of hamstring strain re-injury.