Strategically Pleading Intentional Torts in medical cases

The opportunities and challenges faced by litigants who strategically plead intentional torts are borne out by two recent medical cases. Both arose out of dental treatment. Dean v Phung established some key principles which were clarified in White v Johnston. Before considering those two cases it is worth examining the environment in which such intentional torts claims now exist. Following the Ipp Review of the Law of Negligence, non-uniform legislative changes to the law of negligence were introduced across Australia which have imposed limitations on liability and quantum of damages in cases where a person has been injured through the fault of another. While it seems that, given the limitation of the scope of the review and recommendations to negligently caused damage, the Ipp Review reforms were meant to be limited to injury resulting from negligent acts rather than intentional torts, the extent to which the civil liability legislation applies to intentional torts differs across Australia.

Copyright, fair use and the Australian Constitution

There has been much debate over recent years about whether Australian copyright law should adopt a fair use doctrine. In this chapter we argue by pointing to the historical record that the incorporation of the term 'copyrights' in the Australian Constitution embeds a notion of balance and fair use in Australian law and that this should be taken into account when interpreting the Australian Copyright Act 1968. English case law in the 18th and 19th centuries developed a principle that copyright infringement did not occur where a person had made a fair use of a work. Fair use was generally established where the defendant had made a productive use that did more than alter the original work for the purpose of evading liability, and where the defendant had made an original contribution to the resulting work. Additionally, fairness was shown by a use that did not supersede or prejudice the market for the original work. At the time of including the copyright power in the Constitution, the UK Parliament’s understanding of “copyrights” included the notion of fair use as it had been developed in U.K. precedent. In this chapter we argue that the work “copyrights” in the Australia Constitution takes its definition from copyright in 1900 and as it has evolved since. Importantly, the word “copyrights” is infused with a particular meaning that incorporates the principle of copyright balance. The constitutional notion of copyright, therefore, is not that of an unlimited power to prevent all copying. Rather, copyright distinguishes between infringing copying and non-infringing copying and grants to the copyright owner only the power to control the former. Non-infringing copying includes well-accepted limitations on the copyright owner’s rights, including the copying of ideas, the copying of public domain works and the copying of insubstantial parts of copyrighted works. In this chapter we argue that non-infringing copying also includes copying to make a fair use of a work. The sections that distinguish infringing copying from non-infringing copying in the Copyright Act 1968 are sections 36(1) and 101(1), which define infringement as the doing, without licence, of an “act comprised in the copyright”. An infringing copy is an act comprised the copyright, whereas a non-infringing copy is not. We argue that space for fair uses of copyrighted works is built into the Copyright Act 1968 through these sections, because a fair use will not produce an infringing copy and so is not an act comprised in the copyright.

Recent developments in DNA evidence

DNA evidence has made a significant contribution to criminal investigations in Australia and around the world since it was widely adopted in the 1990s (Gans & Urbas 2002). The direct matching of DNA profiles, such as comparing one obtained from a crime scene with one obtained from a suspect or database, remains a widely used technique in criminal investigations. A range of new DNA profiling techniques continues to be developed and applied in criminal investigations around the world (Smith & Urbas 2012). This paper is the third in a series by the Australian Institute of Criminology (AIC) on DNA evidence. The first, published in 1990 when the technology was in its relative infancy, outlined the scientific background for DNA evidence, considered early issues such as scientific reliability and privacy and described its application in early criminal cases (Easteal & Easteal 1990). The second, published in 2002, expanded on the scientific background and discussed a significant number of Australian cases in a 12-year period, illustrating issues that had arisen in investigations, at trial and in the use of DNA in the review of convictions and acquittals (Gans & Urbas 2002). There have been some significant developments in the science and technology behind DNA evidence in the 13 years since 2002 that have important implications for law enforcement and the legal system. These are discussed through a review of relevant legal cases and the latest empirical evidence. This paper is structured in three sections. The first examines the scientific techniques and how they have been applied in police investigations, drawing on a number of recent cases to illustrate them. The second considers empirical research evaluating DNA evidence and databases and the impact DNA has on investigative and court outcomes. The final section discusses significant cases that establish legal precedent relating to DNA evidence in criminal trials where significant issues have arisen or new techniques have been applied that have not yet been widely discussed in the literature. The paper concludes by reflecting on implications for policy and practice.

Res Communis? A critical legal geography of outer space, Antarctica, and the deep seabed

This chapter provides a critical legal geography of outer Space, charting the topography of the debates and struggles around its definition, management, and possession. As the emerging field of critical legal geography demonstrates, law is not a neutral organiser of space, but is instead a powerful cultural technology of spatial production. Drawing on legal documents such as the Outer Space Treaty and the Moon Treaty, as well as on the analogous and precedent-setting legal geographies of Antarctica and the deep seabed, the chapter addresses key questions about the legal geography of outer Space, questions which are of growing importance as Space’s available satellite spaces in the geostationary orbit diminish, Space weapons and mining become increasingly viable, Space colonisation and tourism emerge, and questions about Space’s legal status grow in intensity. Who owns outer Space? Who, and whose rules, govern what may or may not (literally) take place there? Is the geostationary orbit the sovereign property of the equatorial states it supertends, as these states argued in the 1970s? Or is it a part of the res communis, or common property of humanity, which currently legally characterises outer Space? Does Space belong to no one, or to everyone? As challenges to the existing legal spatiality of outer Space emerge from spacefaring states, companies, and non-spacefaring states, it is particularly critical that the current spatiality of Space is understood and considered.

Spotless decided per incuriam? - A contrary view

The article considers the implications of the decision of the High Court in Spotless Services Pty Ltd (1996) 141 ALR 92; 34 ATR 183. It argues in particular that the decision was made per incuriam.

The Role of Abduction in Self-Similarity

Based on the Aristotelian criterion referred to as 'abductio', Peirce suggests a method of hypothetical inference, which operates in a different way than the deductive and inductive methods. “Abduction is nothing but guessing” (Peirce, 7.219). This principle is of extreme value for the study of our understanding of mathematical self-similarity in both of its typical presentations: relative or absolute. For the first case, abduction incarnates the quantitative/qualitative relationships of a self-similar object or process; for the second case, abduction makes understandable the statistical treatment of self-similarity, 'guessing' the continuity of geometric features to the infinity through the use of a systematic stereotype (for instance, the assumption that the general shape of the Sierpiński triangle continuates identically into its particular shapes). The metaphor coined by Peirce, of an exact map containig itself the same exact map (a map of itself), is not only the most important precedent of Mandelbrot’s problem of measuring the boundaries of a continuous irregular surface with a logarithmic ruler, but also still being a useful abstraction for the conceptualisation of relative and absolute self-similarity, and its mechanisms of implementation. It is useful, also, for explaining some of the most basic geometric ontologies as mental constructions: in the notion of infinite convergence of points in the corners of a triangle, or the intuition for defining two parallel straight lines as two lines in a plane that 'never' intersect.

How Does Effectual Logic Impact Survival of High-tech Startups in an Emerging Economy? - Evidence from 99tests.com Case Study

During the early stages of operation, high-tech startups need to overcome the liability of newness and manage high degree of uncertainty. Several high-tech startups fail due to inability to deal with skeptical customers, underdeveloped markets and limited resources in selling an offering that has no precedent. This paper leverages the principles of effectuation (a logic of entrepreneurial decision making under uncertainty) to explain the journey from creation to survival of high-tech startups in an emerging economy. Based on the 99tests.com case study, this paper suggests that early stage high-tech startups in emerging economies can increase their probability of survival by adopting the principles of effectuation.

The potential impact of Ocean Thermal Energy Conversion (OTEC) on fisheries

The commercial development of ocean thermal energy conversion (OTEC) operations will involve some environmental perturbations for which there is no precedent experience. The pumping of very large volumes of warm surface water and cold deep water and its subsequent discharge will result in the impingement, entrainment, and redistribution of biota. Additional stresses to biota will be caused by biocide usage and temperature depressions. However, the artificial upwelling of nutrients associated with the pumping of cold deep water, and the artificial reef created by an OTEC plant may have positive effects on the local environment. Although more detailed information is needed to assess the net effect of an OTEC operation on fisheries, certain assumptions and calculations are made supporting the conclusion that the potential risk to fisheries is not significant enough to deter the early development of IDEe. It will be necessary to monitor a commercial-scale plant in order to remove many of the remaining uncertainties. (PDF file contains 39 pages.)

Succinate:ubiquinone oxidoreductase from Paracoccus denitrificans and particulate methane monooxygenase from Methylococcus capsulatus (Bath): experimental and theoretical EPR studies of the metal cofactors

This thesis summarizes the application of conventional and modern electron paramagnetic resonance (EPR) techniques to establish proximity relationships between paramagnetic metal centers in metalloproteins and between metal centers and magnetic ligand nuclei in two important and timely membrane proteins: succinate:ubiquinone oxidoreductase (SQR) from Paracoccus denitrificans and particulate methane monooxygenase (pMMO) from Methylococcus capsulatus. Such proximity relationships are thought to be critical to the biological function and the associated biochemistry mediated by the metal centers in these proteins. A mechanistic understanding of biological function relies heavily on structure-function relationships and the knowledge of how molecular structure and electronic properties of the metal centers influence the reactivity in metalloenzymes. EPR spectroscopy has proven to be one of the most powerful techniques towards obtaining information about interactions between metal centers as well as defining ligand structures. SQR is an electron transport enzyme wherein the substrates, organic and metallic cofactors are held relatively far apart. Here, the proximity relationships of the metallic cofactors were studied through their weak spin-spin interactions by means of EPR power saturation and electron spin-lattice (T_1) measurements, when the enzyme was poised at designated reduction levels. Analysis of the electron T_1 measurements for the S-3 center when the b-heme is paramagnetic led to a detailed analysis of the dipolar interactions and distance determination between two interacting metal centers. Studies of ligand environment of the metal centers by electron spin echo envelope modulation (ESEEM) spectroscopy resulted in the identication of peptide nitrogens as coupled nuclei in the environment of the S-1 and S-3 centers.

Finally, an EPR model was developed to describe the ferromagnetically coupled trinuclear copper clusters in pMMO when the enzyme is oxidized. The Cu(II) ions in these clusters appear to be strongly exchange coupled, and the EPR is consistent with equilateral triangular arrangements of type 2 copper ions. These results offer the first glimpse of the magneto-structural correlations for a trinuclear copper cluster of this type, which, until the work on pMMO, has had no precedent in the metalloprotein literature. Such trinuclear copper clusters are even rare in synthetic models.

Eavan Boland and Paula Meehan : Irish voices of the past

History, myth, exile, identity—for generations those have been the themes of Irish poetry, an Irish poetry written almost exclusively by male poets. As women moved in to claim a voice the themes were often the same, though reworked in essential ways. The key to that reworking, the pivot for an Irish women’s poetry, was the development of a female poetic identity. Eavan Boland led the way. In particular, Boland’s struggles as the first prominent female poet of modern Irish Literature emphasize a search for self-identity. At the forefront of this movement and a precedent for those around her, she establishes themes that pave the way for Irish women writers. With Boland, comes a hopeful recovery of the contemporary female literary experience, with the perspective and approach towards self-identity endlessly evolving over time with each new poet. Inspired by Boland, but a generation younger, Paula Meehan explores similar themes of female constraint, yet raises her own distinctive concerns, in particular the division of male and female roles and generational conflict, exploring what is real and ordinary.

An investigation of various types of arc welded joints

In the last few years there has been much discussion as to the relative merits or arc welded joints as compared to riveted joints. There is an old precedent which must be removed before arc welding will come into its own. The purpose of this paper is to help establish confidence in this process of fabrication with special regard to strength and reliability.

Política Nacional de Educação Permanente no SUS: estudo da implantação sob a perspectiva dos gestores da Secretaria Municipal de Saúde de Teresópolis em 2006

Este estudo investigou a implementação da Política Nacional de Educação Permanente da Saúde (PNEPS) no Estado do Rio de Janeiro, durante o ano de 2006. A PNEPS, fundamentalmente, visa mudança das práticas de saúde por meio da educação permanente em serviço pela problematização do cotidiano do trabalho em saúde. No percurso da descentralização, preconizada tanto pelo Sistema Único de Saúde como pela PNEPS, o território de eleição para a investigação foi o do Município de Teresópolis, apresentado segundo os parâmetros utilizados para o cálculo do Índice de Desenvolvimento Humano. A pesquisa se concentrou na Secretaria Municipal de Saúde e nas rodas de consenso do Pólo de Educação Permanente em Saúde da Região Serrana do Estado do Rio de Janeiro. A metodologia utilizou a triangulação de dados procedentes das técnicas da observação participante, da consulta a fontes documentais pertinentes e de dez entrevistas semi-estruturadas feitas com gestores da Secretaria Municipal de Saúde. O material narrativo, das entrevistas, foi transcrito e submetido à análise do discurso. O campo aportou dados inusitados para a análise da implementação da PNEPS. Tanto a prefeitura como a UNIFESO compartilham da mesma liderança política, com repercussões na gestão do Sistema Único de Saúde e na educação formal em saúde. Embora o Programa de Saúde da Família gere demandas para a PNEPS, o cruzamento e a sobrecarga das ações assistenciais com as educativas, nesta instância, mediadas pelo mesmo profissional da saúde, também preceptor da UNIFESO, trazem repercussões para ambas as iniciativas. Principalmente, obstaculizam propostas educativas para as demandas de trabalhadores e de usuários. Finalmente, no que concerne às políticas públicas, o estudo demonstrou a presença do modelo centro-periferia em escala municipal, à semelhança daquele de dimensões mundial e federal, expresso pela descentralização de ações com centralização de recursos.

Avaliação de carbonilas na atmosfera interior e exterior de salas de aula de escolas públicas

Compostos carbonílicos representam uma das principais classes de poluentes atmosféricos e são frequentemente reportados em estudos de poluição atmosférica de interiores. São emitidos para a atmosfera a partir de uma variedade de fontes naturais e antropogênicas. Em projeto empreendido em 2011 pela Secretaria de Estado de Educação do Estado do Rio de Janeiro,foi implementada a climatização em todas as salas de aula de todas as escolas da rede pública estadual. A escala de exposição de ocupantes à climatização, em salas de aula, não apresenta precedentes em nosso estado e representa uma tendência de todo o país. Como é um projeto recente, não há dados a respeito da qualidade do ar interior nesses ambientes e, portanto, das consequências na saúde dos ocupantes. Os procedimentos foram baseados na metodologia TO-11A da U.S.EPA. A técnica de amostragem foi por via seca com reação química, empregando-se cartuchos de sílica revestidos de octadecil (SiO2-C18) impregnados com 2,4-dinitrofenilhidrazina. As carbonilas foram analisados através de Cromatografia Líquida de Alta Eficiência com detecção por UV. Foram encontradas concentrações de formaldeído na faixa de 3,59 a 26,62 μg m-3 (interior) e 0,74 a 23,47 μg m-3 (exterior), acetaldeído na faixa de 0,19 a 259,47 μg m-3 (interior) e 1,19 a 127,51 μg m-3 (exterior), acetona+acroleína na faixa de 0,00 a 48,45 μg m-3 (interior) e 0,00 a 37,00 μg m-3 (exterior). Os valores encontrados geralmente não ultrapassaram os limites determinados por organismos internacionais

The Federal Fisheries Service, 1871–1940: Its Origins, Organization, and Accomplishments

The U.S. Fish Commission was initiated in 1871 with Spencer Fullerton Baird as the first U.S. Fish Commissioner as an independent entity. In 1903 it became a part of the new U.S. Department of Commerce and Labor and was renamed the Bureau of Fisheries, a name it retained when the Departments of Commerce and Labor were separated in 1912. The Bureau remained in the Commerce Department until 1941 when it was merged with the Biological Survey and placed in the Department of Interior as the U.S. Fish and Wildlife Service. It was a scientific agency with well conceived programs of action, and it provided knowledge, advice, and example to state governments and individuals with fisheries interests and needs. Its efforts were supported by timely international agreements which constituted the precedent for Federal interest in fishery matters. The Fisheries Service earned stature as an advisor through heavy emphasis on basic biological research. The lack of such knowledge was marked and universal in the 1870’s, but toward the end of that decade, strong steps had been taken to address those needs under Baird’s leadership. USFC research activities were conducted cooperatively with other prominent scientists in the United States and abroad. Biological stations were established, and the world’s first and most productive deepsea research vessel, the Albatross, was constructed, and its 40-year career gave a strong stimulus to the science of oceanography. Together, the agency’s scientists and facilities made important additions to the sum of human knowledge, derived principles of conservation which were the vital bases for effective regulatory legislation, conducted extensive fish cultural work, collected and disseminated fisheries statistics, and began important research in methods of fish harvesting, preservation, transportation, and marketing.

O prazo decadencial das contribuições especiais, a edição da Súmula Vinculante n 08/2008 e a polêmica na modulação de seus efeitos

No presente trabalho foram analisadas a natureza jurídica das contribuições especiais, suas hipóteses de validação constitucional como seu critério de distinção perante as demais espécies tributárias, bem como a correta determinação do prazo decadencial a elas estabelecido pelo art 146 do Código Tributário Nacional (CTN), especialmente em face da inconstitucionalidade do art 45 da Lei n 8.212/91 declarada através da Súmula Vinculante n 08/2008. Também foram abordadas as correntes doutrinárias favoráveis e contrárias à possibilidade da restrição dos efeitos das decisões de inconstitucionalidade das normas tributárias, bem como realizada a crítica à modulação dos efeitos da SV n 08/2008, que culminou por limitar a repetição do indébito das contribuições irregularmente constituídas apenas àqueles contribuintes que haviam se insurgido contra seu pagamento, administrativa ou judicialmente, até a data de 11/06/2008.