Nondelegable duty : the implications of Woodland v Essex County Council

English law has long recognised that nondelagable duties exist, but it does not have a single theory to explain when or why - arguable, one might add, until now. That is the value of the reasons for judgement in Woodland v Essex County Council.

Dalby Shopping Precinct Survey Report : Consumer Attitudes towards Proposed Extended Trading Hours at Dalby

Data was collected to measure shopper’s attitudes toward the proposed Sunday and limited public holiday trading in Dalby. Survey questionnaires were conducted between 29th August to 31st August at Coles Dalby and Dalby Shoppingtown Plaza. In total, 150 respondents participated in the survey. Overall, the findings suggest that most respondents, especially males, couples with children, fulltime workers and those under the age of 49 years, embrace the proposed Sunday and limited holiday trading in Dalby. While there are concerns over increasing competition for smaller retailers who already trade on Sundays, a majority of respondents indicated it would suit their lifestyle, be convenient, provide more jobs, increase trade for smaller retailers within the area, reduce queues and congestion observed on Saturdays. The majority of those shoppers that indicated they currently did some shopping on a Sunday reported they would continue to support smaller retailers who currently trade on Sundays and some public holidays, if changes came about. Those opposed to changes to trading hours indicated a belief that existing trading hours were sufficient. Most people indicated the proposed extension of trading hours would not harm the community or have a negative, detrimental effect on themselves or their family. The main findings presented in the report are as follows: - 96.8% of respondents surveyed reported to be local, permanent residents of Dalby. - Residents of Dalby visited shopping centres and stores on average 2.8 times per week. This frequency is proportionately higher than the average Australian shopping behaviour at 2.5 times per week (Roy Morgan Supermarket Monitor). - It was determined that weekday evenings (after 5 pm) were the busiest times for shopping, with Saturday the next most popular day to shop. - 68% of respondents support the proposal of the extended trading hours at supermarkets, department stores and the shopping centre in Dalby, 26% oppose and 6% are unsure. - 90% of the respondents agreed that residents of Dalby should be allowed the same choice as other regional towns and cities in supporting/opposing changes to trading hours. The remaining 10% expressed a disagreement. - A larger percentage of males supported the proposal for Sunday and limited holiday trading. Of all the males surveyed, 80% were in support, 15% were opposed and 5% unsure. 60% of female respondents support the proposal, while 33% oppose it and 5% were unsure. - The highest percentage of support exists in fulltime workers with 90% of those respondents supporting the proposal. - In contrast, the lowest percentage of support was found in the non-working (retired/unemployed) respondents, where 67% opposed the application. - It was noted that 71% of respondents employed casually also indicated opposition against proposed changes. Further questioning identified an underlying concern from casually employed persons that Sunday trade would force them onto Sunday work rosters. - 92% of shared households expressed support for Sunday and limited public holiday trading, while 83% of both couples with children and single parent with children at home also supported the application. - 72% of the respondents often find it necessary to do some grocery shopping in Dalby on a Sunday. 76% of shoppers who indicated they already undertook some shopping on Sunday, indicated would continue to shop and support smaller retailers. - Of the respondents surveyed, 44% have travelled outside of Dalby on a Sunday to shop. This indicates that such residents find it necessary to undertake some shopping on a Sunday and in order to do so, drive an hour to Toowoomba in order to access a range of retailers. - The most cited reasons for supporting Sunday and limited public holiday trade were; ‘More choice about when I shop and that is convenient’ (69%), ‘Sunday trade will create job opportunities’ (71%), ‘Sunday trade will be helpful when preparing school lunches and getting ready for the working week’ (62%), and ‘Sunday trade will reduce shopping congestion during peak shopping periods’ (62%) - The most cited reasons for opposing the proposed changes are that ‘Sunday trade may increase competition for small retailers who already trade on Sunday’ (41%), ‘Shops are already open 6 days a week which is enough’ (31%), and ‘Sunday is a day of rest or a religious day and shopping should not be allowed’ (23%). - 97% of respondents indicated they would not change their sporting or social commitment if changes to trading hours were implemented.

Mt Isa Shopping Precinct Survey Report : Consumer Attitudes towards Proposed Extended Trading Hours at Mt Isa

Data was collected to measure shopper’s attitudes toward the proposed Sunday and limited public holiday trading in Mt Isa. Survey questionnaires were conducted between 15th August to 17th August at Kmart Plaza, Woolworths, Miles St. and Mt Isa Plaza. In total, 300 respondents participated in the survey. Overall, the findings suggest that most respondents, especially males, couples with children and fulltime workers, embrace the proposed Sunday and limited holiday trading in Mt Isa. While there are concerns over increasing competition for smaller retailers who already trade on Sundays, a majority of respondents indicated it would suit their lifestyle, be convenient, provide more jobs, increase trade for smaller retailers within the area, reduce queues and congestion, and offer a less expensive grocery shopping. The majority of those shoppers that indicated they currently did some shopping on a Sunday reported they would continue to support smaller retailers who currently trade on Sundays and some public holidays, if changes came about. Those opposed to changes to trading hours also indicated a belief that existing trading hours were sufficient. Most people indicated the proposed extension of trading hours would not harm the community or have a negative, detrimental effect on themselves or their family. The main findings presented in the report are as follows: - 96% of respondents surveyed reported to be local, permanent residents of Mt Isa. - Residents of Mt Isa visited shopping centres and stores on average 2.4 times per week. This mirrors the average Australian shopping behaviour at 2.5 times per week (Roy Morgan Supermarket Monitor) - It was determined that Saturday was the busiest day for shopping with a majority of respondents indicating they visited stores on that day of the week. - 71% of respondents support the proposal of extended trading hours at shopping centres in Mt Isa, 25% oppose and 4% are unsure. - 87% of the respondents agreed that residents of Mt Isa should be allowed the same choice as other regional towns and cities in supporting/opposing changes to trading hours. The remaining 13% expressed a disagreement. - A larger percentage of males supported the proposal for Sunday and limited holiday trading. Of all the males surveyed, 81% were in support, 17% were opposed and 2% unsure. By contrast, 64% of female respondents support the proposal, while 31% oppose it and 5% are unsure. - The highest percentage of support exists in fulltime workers with 85% of those respondents supporting the proposal. In contrast, the lowest percentage of support was found in the non-working respondents, where 62% opposed the application. - 78% of couples living with children at home expressed support for Sunday and limited public holiday trading, while 60% of couples without children also supported the application. - Of the respondents surveyed, virtually none (less than 1%) have travelled outside of Mt Isa on a Sunday to shop. This indicates that due to the remote and isolated location of this town, residents do not have the option to travel reasonable distances in order to access a range of retailers. - 70% of the respondents often find it necessary to do some grocery shopping in Mt Isa on a Sunday. - Convenience is cited as the major reason for support (79%) followed by lifestyle (75%). - The most cited reasons for supporting ‘it would be convenient’ (81%), ‘It may create more jobs’ (77%), ‘It may reduce congestion during busy shopping periods’ (74%, and ‘It would make it easier for working families with kids’ (74%). - The most cited reasons for opposing the proposed changes are that ‘It will disadvantage smaller businesses’ (44%), ‘It is unnecessary’ (29%). - 72% of shoppers who indicated they already undertook some shopping on Sunday, indicated would continue to shop and support smaller retailers. - 98% of respondents indicated they would not change their sporting or social commitment if changes to trading hours were implemented.

Enforcing upstream: Australian health and safety inspectors and upstream duty holders

The ‘new style’ occupational health and safety legislation implemented in Australia from the late 1970s changed the character of OHS legal obligations, establishing general duties supported by process, performance and, more rarely, specification standards,1 and extending obligations to those who propagate risks as designers, manufacturers, importers or suppliers — the ‘upstream duty holders’. This article examines how OHS agencies inspect and enforce OHS legislation upstream, drawing on empirical research in four Australian states and relevant case law. We argue that upstream duty holders are an increasing area of attention for OHS inspectorates but these inspectorates have not yet risen to the challenge of harnessing these parties to help stem, at the source, the flow of risks into workplaces.

Dismantling worker categories: the primary duty of care, and worker consultation, participation and representation, in the model Work Health and Safety Bill 2009

Late in 2009, the Australian Workplace Relations Ministers' Council endorsed the model Work Health and Safety Bill 2009, which is to be adopted by all Australian governments (federal, state and territory) from 01 January 2012. This paper describes and analyses two key sets of provisions in this model legislation. The first establishes a 'primary' duty of care imposed not on 'employers' but on persons conducting a business or undertaking, and owed to all kinds of workers engaged, directed or influenced by the person conducting the business or undertaking. The second encompasses broad duties on all persons conducting a business or undertaking to consult with workers who carry out work for the business or undertaking and who are directly affected by a work health and safety issue, and to facilitate the election of health and safety representatives representing all workers who carry out work for the business or undertaking. These provisions arguably make a significant contribution to solving a problem faced by occupational safety and health regulators around the world – modifying regulation to accommodate all forms of precarious work.

Once more into the mire, dear friends : determining the existence of a duty of care in negligence

There were signs in the 1997 High Court decision in Hill v Van Erp that the different members of the bench were beginning to move in the same direction when it came to the tort equivalent of the search for the Holy Grail, a common approach to the determination of the existence of a duty of care in negligence. However, the court's subsequent decision in Perre v Apand signaled a slide back to uncertainty with the seven judges favouring five different approaches. This Note examines those five approaches in the search for guidance for those at the "coalface" - litigants, their legal advisers and trial judges.

Duty and control in intermediary copyright liability: An Australian perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This article argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Facebook and Google have a moral duty to stop online abuse

It’s the stuff of nightmares: your intimate images are leaked and posted online by somebody you thought you could trust. But in Australia, victims often have no real legal remedy for this kind of abuse. This is the key problem of regulating the internet. Often, speech we might consider abusive or offensive isn’t actually illegal. And even when the law technically prohibits something, enforcing it directly against offenders can be difficult. It is a slow and expensive process, and where the offender or the content is overseas, there is virtually nothing victims can do. Ultimately, punishing intermediaries for content posted by third parties isn’t helpful. But we do need to have a meaningful conversation about how we want our shared online spaces to feel. The providers of these spaces have a moral, if not legal, obligation to facilitate this conversation.

The National Road Safety Partnership Program providing a pathway for any business/organisation to create a positive road safety culture

The National Road Safety Partnership Program (NRSPP) is an industry-led collaborative network which aims to support Australian businesses in developing a positive road safety culture. It aims to help businesses to protect their employees and the public, not only during work hours, but also when their staff are ‘off-duty’. How do we engage and help an organisation minimise work-related vehicle crashes and their consequences both internally, and within the broader community? The first step is helping an organisation to understand the true cost of its road incidents. Larger organisations often wear the costs without knowing the true impact to their bottom line. All they perceive is the change in insurance or vehicle repairs. Understanding the true cost should help mobilise a business’s leadership to do more. The next step is ensuring the business undertakes an informed, structured, evidence-based pathway which will guide them around the costly pitfalls. A pathway based around the safe system approach with buy-in at the top which brings the workforce along. The final step, benchmarking, allows the organisation to measure and track its change. This symposium will explore the pathway steps for organisations using NRSPP resources to become engaged in road safety. The 'Total Cost of Risk' calculator has been developed by Zurich, tested in Europe by Nestle and modified by NRSPP for Australia. This provides the first crucial step. The next step is a structured approach through the Workplace Road Safety Guide using experts and industry to discuss the preferred safe system approach which can then link into the national Benchmarking Project. The outputs from the symposium can help frame a pathway for organisations to follow through the NRSPP website.

Fatigued driving : prevalence, risk factors and groups, and the law

Fatigue and sleepiness are major causes of road traffic accidents. However, precise data is often lacking because a validated and reliable device for detecting the level of sleepiness (cf. the breathalyzer for alcohol levels) does not exist, nor does criteria for the unambiguous detection of fatigue/sleepiness as a contributing factor in accident causation. Therefore, identification of risk factors and groups might not always be easy. Furthermore, it is extremely difficult to incorporate fatigue in operationalized terms into either traffic or criminal law. The main aims of this thesis were to estimate the prevalence of fatigue problems while driving among the Finnish driving population, to explore how VALT multidisciplinary investigation teams, Finnish police, and courts recognize (and prosecute) fatigue in traffic, to identify risk factors and groups, and finally to explore the application of the Finnish Road Traffic Act (RTA), which explicitly forbids driving while tired in Article 63. Several different sources of data were used: a computerized database and the original folders of multidisciplinary teams investigating fatal accidents (VALT), the driver records database (AKE), prosecutor and court decisions, a survey of young male military conscripts, and a survey of a representative sample of the Finnish active driving population. The results show that 8-15% of fatal accidents during 1991-2001 were fatigue related, that every fifth Finnish driver has fallen asleep while driving at some point during his/her driving career, and that the Finnish police and courts punish on average one driver per day on the basis of fatigued driving (based on the data from the years 2004-2005). The main finding regarding risk factors and risk groups is that during the summer months, especially in the afternoon, the risk of falling asleep while driving is increased. Furthermore, the results indicate that those with a higher risk of falling asleep while driving are men in general, but especially young male drivers including military conscripts and the elderly during the afternoon hours and the summer in particular; professional drivers breaking the rules about duty and rest hours; and drivers with a tendency to fall asleep easily. A time-of-day pattern of sleep-related incidents was repeatedly found. It was found that VALT teams can be considered relatively reliable when assessing the role of fatigue and sleepiness in accident causation; thus, similar experts might be valuable in the court process as expert witnesses when fatigue or sleepiness are suspected to have a role in an accident’s origins. However, the application of Article 63 of the RTA that forbids, among other things, fatigued driving will continue to be an issue that deserves further attention. This should be done in the context of a needed attitude change towards driving while in a state of extreme tiredness (e.g., after being awake for more than 24 hours), which produces performance deterioration comparable to illegal intoxication (BAC around 0.1%). Regarding the well-known interactive effect of increased sleepiness and even small alcohol levels, the relatively high proportion (up to 14.5%) of Finnish drivers owning and using a breathalyzer raises some concern. This concern exists because these drivers are obviously more focused on not breaking the “magic” line of 0.05% BAC than being concerned about driving impairment, which might be much worse than they realize because of the interactive effects of increased sleepiness and even low alcohol consumption. In conclusion, there is no doubt that fatigue and sleepiness problems while driving are common among the Finnish driving population. While we wait for the invention of reliable devices for fatigue/sleepiness detection, we should invest more effort in raising public awareness about the dangerousness of fatigued driving and educate drivers about how to recognize and deal with fatigue and sleepiness when they ultimately occur.

Responses in carcass lean pH at 24 hours post-mortem in lines of Large White pigs selected for growth rate on a fixed ration over a set time

A restricted maximum likelihood analysis applied to an animal model showed no significant differences (P > 0.05) in pH value of the longissimus dorsi measured at 24 h post-mortem (pH24) between high and low lines of Large White pigs selected over 4 years for post-weaning growth rate on restricted feeding. Genetic and phenotypic correlations between pH24 and production and carcass traits were estimated using all performance testing records combined with the pH24 measurements (5.05-7.02) on slaughtered animals. The estimate of heritability for pH24 was moderate (0.29 ± 0.18). Genetic correlations between pH24 and production or carcass composition traits, except for ultrasonic backfat (UBF), were not significantly different from zero. UBF had a moderate, positive genetic correlation with pH24 (0.24 ± 0.33). These estimates of genetic correlations affirmed that selection for increased growth rate on restricted feeding is likely to result in limited changes in pH24 and pork quality since the selection does not put a high emphasis on reduced fatness.

Hypoxic corneal changes following 8 hours of scleral contact lens wear

- Purpose To examine the change in corneal thickness and posterior curvature following 8 hours of miniscleral contact lens wear. - Methods Scheimpflug imaging (Pentacam HR, Oculus) was captured before, and immediately following, 8 hours of miniscleral contact lens wear for 15 young (mean age 22 ± 3 years), healthy participants with normal corneae. Natural diurnal variations were considered by measuring baseline corneal changes obtained on a separate control day without contact lens wear. - Results Over the central 6 mm of the cornea, a small, but highly statistically significant amount of edema was observed following 8 hours of miniscleral lens wear, after accounting for normal diurnal fluctuations (mean ± standard deviation percentage swelling 1.70 ± 0.98%, p < 0.0001). Posterior corneal topography remained stable following lens wear (-0.01 ± 0.07 mm steepening over the central 6 mm, p = 0.60). The magnitude of posterior corneal topographical changes following lens wear did not correlate with the extent of lens-related corneal edema (r = -0.16, p = 0.57). Similarly, the initial central corneal vault (maximum post-lens tear layer depth) was not associated with corneal swelling following lens removal (r = 0.27, p = 0.33). - Conclusions While a small amount of corneal swelling was induced following 8 hours of miniscleral lens wear (on average <2%), modern high Dk miniscleral contact lenses that vault the cornea do not induce clinically significant corneal edema or hypoxic related posterior corneal curvature changes during short-term wear. Longer-term studies of compromised eyes (e.g. corneal ectasia) are still required to inform the optimum lens and fitting characteristics for safe scleral lens wear to minimize corneal hypoxia.

Duty and Control in Intermediary Copyright Liability: An Australian Perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This chapter argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Experimental investigation of the effects of oxygenated fuels on exhaust emissions in a heavy duty diesel engine

Physical and chemical properties of biofuels vary among various feedstocks and their subsequent conversions to fuels. The biofuels contain various amounts of oxygen, and this has a significant influence on exhaust emission. This oxygen content has been considered in order to investigate its effect on diesel engine exhaust emissions. The experiments have been conducted with a heavy duty diesel engine and various oxygenated fuels. It is found that the amount of oxygen in the fuel has a high level of influence on its exhaust emissions, and this provides agreement with diesel emissions results such as PN reduction. By increasing the amount of oxygen in the blend (by adding more biofuel), the particulate number (PN) is reduced and NOx increases gradually. However, the variation of PN and NOx are not similar for waste cooking biodiesel (WCBD) and butanol blend, even though their oxygen content are the same in the blends. This is due to the source of the biofuel and their internal chemistry.