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.

Review: "Planning Asian cities : risks and resilience" edited by Stephen Hamnett and Dean Forbes, Planning, History and Environment Series, London, Routledge, 2011

Since the beginning of the agricultural revolution, cities have always been the cradle of civilisation, innovation and productivity, particularly as a result of the recent change factors affecting their (trans)formation, such as globalisation, the knowledge economy, technological advancements, climate change and so on. While in some parts of the world, cities are rapidly growing, in other parts, cities are shrinking, and their populations are aging. Even under the current pressure of constantly changing global conditions, the role of cities in influencing and partially shaping local, regional, national, supranational and even global level economy, society, environment and governance is undeniable. Global changes, while providing opportunities for cities and their administrations to reform and revisit existing planning and development processes and mechanisms, at the same time, challenge them by dealing with everincreasing risks and establishing resilience. At present, more than half of the world’s population...

Matrix metalloproteinase 13-deficient mice are resistant to osteoarthritic cartilage erosion but not chondrocyte hypertrophy or osteophyte development

Objective To investigate the role of matrix metalloproteinase 13 (MMP-13; collagenase 3) in osteoarthritis (OA). Methods OA was surgically induced in the knees of MMP-13-knockout mice and wild-type mice, and mice were compared. Histologic scoring of femoral and tibial cartilage aggrecan loss (0-3 scale), erosion (0-7 scale), and chondrocyte hypertrophy (0-1 scale), as well as osteophyte size (0-3 scale) and maturity (0-3 scale) was performed. Serial sections were stained for type X collagen and the MMP-generated aggrecan neoepitope DIPEN. Results Following surgery, aggrecan loss and cartilage erosion were more severe in the tibia than femur (P < 0.01) and tibial cartilage erosion increased with time (P < 0.05) in wild-type mice. Cartilaginous osteophytes were present at 4 weeks and underwent ossification, with size and maturity increasing by 8 weeks (P < 0.01). There was no difference between genotypes in aggrecan loss or cartilage erosion at 4 weeks. There was less tibial cartilage erosion in knockout mice than in wild-type mice at 8 weeks (P < 0.02). Cartilaginous osteophytes were larger in knockout mice at 4 weeks (P < 0.01), but by 8 weeks osteophyte maturity and size were no different from those in wild-type mice. Articular chondrocyte hypertrophy with positive type X collagen and DIPEN staining occurred in both wild-type and knockout mouse joints. Conclusion Our findings indicate that structural cartilage damage in a mouse model of OA is dependent on MMP-13 activity. Chondrocyte hypertrophy is not regulated by MMP-13 activity in this model and does not in itself lead to cartilage erosion. MMP-13 deficiency can inhibit cartilage erosion in the presence of aggrecan depletion, supporting the potential for therapeutic intervention in established OA with MMP-13 inhibitors.

Audit fees and asset securitization risks

The thesis investigates “where were the auditors in asset securitizations”, a criticism of the audit profession before and after the onset of the global financial crisis (GFC). Asset securitizations increase audit complexity and audit risks, which are expected to increase audit fees. Using US bank holding company data from 2003 to 2009, this study examines the association between asset securitization risks and audit fees, and its changes during the global financial crisis. The main test is based on an ordinary least squares (OLS) model, which is adapted from the Fields et al. (2004) bank audit fee model. I employ a principal components analysis to address high correlations among asset securitization risks. Individual securitization risks are also separately tested. A suite of sensitivity tests indicate the results are robust. These include model alterations, sample variations, further controls in the tests, and correcting for the securitizer self-selection problem. A partial least squares (PLS) path modelling methodology is introduced as a separate test, which allows for high intercorrelations, self-selection correction, and sequential order hypotheses in one simultaneous model. The PLS results are consistent with the main results. The study finds significant and positive associations between securitization risks and audit fees. After the commencement of the global financial crisis in 2007, there was an increased focus on the role of audits on asset securitization risks resulting from bank failures; therefore I expect that auditors would become more sensitive to bank asset securitization risks after the commencement of the crisis. I find that auditors appear to focus on different aspects of asset securitization risks during the crisis and that auditors appear to charge a GFC premium for banks. Overall, the results support the view that auditors consider asset securitization risks and market changes, and adjust their audit effort and risk considerations accordingly.

Benefits and risks of large hydrostatic recesses in hydroelectric turbine thrust bearings

Operators of hydroelectric power stations sometimes call upon engineers to modify existing hydroelectric turbines, usually several decades old, for improved maintainability and reliability. One common modification is the hybridisation of plain thrust pads to allow hydrostatic operation to reduce the risk of bearing wipe at low speed (virtually all new installations benefit from this feature). A modification such as this is not a difficult undertaking; however, there are numerous factors that need to be considered in order to maximize bearing performance. One factor that stands out above the others is whether the thrust bearing should be designed to lift the turbine immediately from the standing condition, which presents an interesting challenge: the recess has to have a sufficiently large area in order for the supply pressure to be able to overcome the dead weight of the turbine. If the combination of groove area and pressure is insufficient, then lifting is neither immediate nor guaranteed. This need not be a significant problem, as the bearings have exhibited adequate performance even in the absence of a hydrostatic lubricant supply. A case study is presented whereby relatively large hydrostatic recesses are added to the pads of thrust bearing. It is demonstrated with the aid of simple numerical modelling that the impact of the recess relative to the original pad is small under normal operating conditions. Most surprising, however, is that significant reductions in average oil film temperature and power dissipation are predicted.

Bank audit fees and asset securitization risks

Using the lens of audit pricing, we provide insights into auditors’ behaviors in relation to the risk of asset securitizations to bank holding companies in a period encompassing the Global Financial Crisis (GFC) and the introduction of the accounting standards FAS 166 and FAS 167. Using US bank holding company data from 2003 to 2011, we find significant and positive associations between asset securitization risks and audit fees. We find that auditors appear to focus on different aspects of asset securitization risks after the onset of the GFC, and increase their attention to the systemic risks facing bank holding companies in general. After the implementation of FAS 166 and FAS 167, which removed the discretion to treat asset securitizations as sales and required the consolidation of the accounts of special purpose entities, asset securitization risks no longer have a significant effect on audit fees.

Parent's socio-economic status and social support as risks for child mortality : consideration of health equity in The Gambia

A matched case-control study of mortality to children under age five was conducted to consider associations with parents' socio-economic status and social support in the Farafenni Demographic Surveillance Site (DSS). Cases and controls were selected from Farafenni DSS, matched on date of birth, and parents were interviewed about personal resources and social networks. Parents with the lowest personal socio-economic status and social support were identified. Multivariate multinomial regression was used to consider whether the children of these parents were at increased risk of either infant or 1-4 mortality, in separate models using either parents' characteristics. There was no benefit found for higher SES or better social support with respect to child mortality. Children of fathers who had the poorest social support had lower 1-4 mortality risk (OR=0.52, p=0.037). Given that socio-economic status was not associated with child mortality, it seems unlikely that the explanation for the link between father's social support and mortality is linked to resource availability. Explanations for the risk effect of father's social ties may lie in decision-making around health maintenance and health care for children.

Interpreting and comparing risks in the presence of competing events

Competing events are common in medical research. Ignoring them in the statistical analysis can easily lead to flawed results and conclusions. This article uses a real dataset and a simple simulation to show how standard analysis fails and how such data should be analysed

Regulating Workplace Risks: A Comparative Study of Inspection Regimes in Times of Change

Regulating Workplace Risks is a study of regulatory inspection of occupational health and safety (OHS) and its management in five countries – Australia, Canada (Québec), France, Sweden and the UK – during a time of major change. It examines the implications of the shift from specification to process based regulation, in which attention has been increasingly directed to the means of managing OHS more systematically at a time in which a major restructuring of work has occurred in response to the globalised economy. These changes provide both the context and material for a wider discussion of the nature of regulation and regulatory inspection and their role in protecting the health, safety and well-being of workers in advanced market economies.

Workforce-related risks in projects with a contingent workforce

Our research examined how projects can draw together the fields of human resource management (HRM) and risk management (RM) to consider workforce-related risks on projects; particularly those with a large contingent workforce. It is argued that RM frameworks could be enhanced by a more comprehensive understanding of the specific potential non-technical “people risks” in projects. The study focussed on the Oil and Gas industry and undertook interviews with experts in the field. The findings are considered within the framework of key HRM areas; Management Practices, General Employment Practices, Staffing, HR Development, and Compensation and Benefits, along with Project Completion. Drawing together RM and HRM in a project environment, our research provides a unique opportunity to identify critical workforce-related risks. Such identification is the first step towards a more comprehensive approach to risk assessment and planning for mitigation of such risks in projects.

Exploring the effect of political risks in large infrastructure projects in politically unstable countries using a probabilistic modelling approach

This research aims to explore and identify political risks on a large infrastructure project in an exaggerated environment to ascertain whether sufficient objective information can be gathered by project managers to utilise risk modelling techniques. During the study, the author proposes a new definition of political risk; performs a detailed project study of the Neelum Jhelum Hydroelectric Project in Pakistan; implements a probabilistic model using the principle of decomposition and Bayes probabilistic theorem and answers the question: was it possible for project managers to obtain all the relevant objective data to implement a probabilistic model?

Government grants - an abrogation or management of risks?

New public management (NPFM), with its hands-on, private sector-style performance measurement, output control, parsimonious use of resources, disaggreation of public sector units and greater competition in the public sector, has significantly affected charitable and nonprofit organisations delivering community services (Hood, 1991; Dunleavy, 1994; George & Wilding, 2002). The literature indicates that nonprofit organisations under NPM believe they are doing more for less: while administration is increasing, core costs are not being met; their dependence on government funding comes at the expense of other funding strategies; and there are concerns about proportionality and power asymmetries in the relationship (Kerr & Savelsberg, 2001; Powell & Dalton, 2011; Smith, 2002, p. 175; Morris, 1999, 2000a). Government agencies are under increased pressure to do more with less, demonstrate value for money, measure social outcomes, not merely outputs and minimise political risk (Grant, 2008; McGreogor-Lowndes, 2008). Government-community service organisation relationships are often viewed as 'uneasy alliances' characterised by the pressures that come with the parties' differing roles and expectations and the pressures that come with the parties' differing roles and expectations and the pressurs of funding and security (Productivity Commission, 2010, p. 308; McGregor-Lowndes, 2008, p. 45; Morris, 200a). Significant community services are now delivered to citizens through such relationships, often to the most disadvantaged in the community, and it is important for this to be achieved with equity, efficiently and effectively. On one level, the welfare state was seen as a 'risk management system' for the poor, with the state mitigating the risks of sickness, job loss and old age (Giddens, 1999) with the subsequent neoliberalist outlook shifting this risk back to households (Hacker, 2006). At the core of this risk shift are written contracts. Vincent-Jones (1999,2006) has mapped how NPM is characterised by the use of written contracts for all manner of relations; e.g., relgulation of dealings between government agencies, between individual citizens and the state, and the creation of quais-markets of service providers and infrastructure partners. We take this lens of contracts to examine where risk falls in relation to the outsourcing of community services. First we examine the concept of risk. We consider how risk might be managed and apportioned between governments and community serivce organisations (CSOs) in grant agreements, which are quasiy-market transactions at best. This is informed by insights from the law and economics literature. Then, standard grant agreements covering several years in two jurisdictions - Australia and the United Kingdom - are analysed, to establish the risk allocation between government and CSOs. This is placed in the context of the reform agenda in both jurisdictions. In Australia this context is th enonprofit reforms built around the creation of a national charities regulator, and red tape reduction. In the United Kingdom, the backdrop is the THird Way agenda with its compacts, succeed by Big Society in a climate of austerity. These 'case studies' inform a discussion about who is best placed to bear and manage the risks of community service provision on behalf of government. We conclude by identifying the lessons to be learned from our analysis and possible pathways for further scholarship.

A recommendation system for predicting risks across multiple business process instances

This paper proposes a recommendation system that supports process participants in taking risk-informed decisions, with the goal of reducing risks that may arise during process execution. Risk reduction involves decreasing the likelihood and severity of a process fault from occurring. Given a business process exposed to risks, e.g. a financial process exposed to a risk of reputation loss, we enact this process and whenever a process participant needs to provide input to the process, e.g. by selecting the next task to execute or by filling out a form, we suggest to the participant the action to perform which minimizes the predicted process risk. Risks are predicted by traversing decision trees generated from the logs of past process executions, which consider process data, involved resources, task durations and other information elements like task frequencies. When applied in the context of multiple process instances running concurrently, a second technique is employed that uses integer linear programming to compute the optimal assignment of resources to tasks to be performed, in order to deal with the interplay between risks relative to different instances. The recommendation system has been implemented as a set of components on top of the YAWL BPM system and its effectiveness has been evaluated using a real-life scenario, in collaboration with risk analysts of a large insurance company. The results, based on a simulation of the real-life scenario and its comparison with the event data provided by the company, show that the process instances executed concurrently complete with significantly fewer faults and with lower fault severities, when the recommendations provided by our recommendation system are taken into account.