Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Reality bytes : technology in real world legal education

The use of technology for purposes such as communication and document management has become essential to legal practice with practitioners and courts increasingly relying on various forms of technology. Accordingly, legal practitioners need to be able to understand, communicate with, and persuade their audience using this technology. Technology skills are therefore an essential and integral part of undergraduate legal education, and given the widening participation agenda in Australia and consequent increasing diversity of law students, it must also be available to all students. To neglect this most crucial part of modern legal education is to fail in a fundamental aspect of a University’s obligation not just to its students, but ultimately to our students’ potential employers and their future clients. This paper will consider how law schools can facilitate the development of technology skills by using technology to facilitate mooting in settings that replicate legal practice. In order to assess the facilities at the disposal of universities, the authors surveyed the law schools in Australia about their equipment in and use of electronic moot court rooms. The authors also conducted and evaluated an internal mooting competition using Elluminate, an online communication platform available to students through Blackboard. Students were able to participate wherever they were located without the need to attend a moot court room. The results of the survey and evaluation of the Elluminate competition will be discussed. The paper will conclude that while it is essential to teach technology skills as part of legal education, it is important that the benefits and importance of using technology be made clear in order for it to be accepted and embraced by the students. Technology must also be available to all students considering the widening participation in higher education and consequent increasing diversity of law students.

Access to protection for 'Offshore Entry Persons' aka asylum seekers

In 2001, amendments to the Migration Act 1958 (Cth) made possible the offshore processing of protection claims. The same amendments also foreshadowed the processing of claims by ‘offshore entry persons’ in Australia according to non-statutory procedures. After disbanding offshore processing the then Rudd Labor Government commenced processing of protection claims by ‘offshore entry persons’ in Australia under the Refugee Status Assessment process (RSA). The RSA process sought to substitute well established legislative criteria for the grant of a protection visa, as interpreted by the courts, with administrative guidelines and decision-making immune from judicial review. This approach was rejected by the High Court in the cases M61 and M69. This article analyses these developments in light of Australia’s international protection obligations, as well as considering the practical obstacles that continue to confront offshore entry persons as they pursue judicial review of adverse refugee status determinations after the High Court’s decision.

Palliative care, double effect and the law in Australia

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death. In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care.

Collaboration : developing integration in multi-purpose services in rural New South Wales, Australia

Introduction: The Multi-purpose Service (MPS) Program was introduced to rural Australia in 1991 as a solution to poor health outcomes in rural compared with metropolitan populations, difficulty in attracting healthcare staff and a lack of viability and range of health services in rural areas. The aim of this study was to describe the main concerns of participants involved in the development of multi-purpose services in rural New South Wales (NSW). This article is abstracted from a larger study and discusses the extent to which collaboration occurred within the new multi-purpose service. Methods: A constructivist grounded theory methodology was used. Participants were from 13 multi-purpose services in rural NSW and 30 in-depth interviews were conducted with 6 community members, 11 managers and 13 staff members who had been involved in the process of developing a multi-purpose service. Results: The main concern of all participants was their anticipation of risk. This anticipation of risk manifested itself in either trust or suspicion and explained their progression through a phase of collaborating. Participants who had trust in other stakeholders were more likely to embrace an integrated health service identity. Those participants, who were suspicious that they would lose status or power, maintained that the previous hospital services provided a better health service and described a coexistence of services within the multi-purpose service. Conclusions: This study provided an insight into the perceptions of community members, staff members and managers involved in the process of developing a multi-purpose service. It revealed that the anticipation of risk was intrinsic to a process of changing from a traditional hospital service to collaborating in a new model of health care provided at a multi-purpose service.

Safeguarding rural Australia : addressing masculinity and violence in rural settings : risky behaviour in a rural Australian context : analysis of secondary data analysis

This report is an update of an earlier one produced in January 2010 (see Carrington et al. 2010) which remains as an ePrint through the project’s home page. The report focus on our examination of extant data which have been sourced with respect to personally and socially risky behaviour associated with males living in regional and remote Australia and which were available in public data bases at production.

Naming and claiming workplace sexual harassment in Australia

The persistence of sexual harassment in the workplace and the fact such behaviour remains significantly unreported suggest that legal definitions of sexual harassment may not be well understood. In this paper we explore the naming and claiming of sexual harassment in Australian workplaces, drawing on a unique dataset from a national sexual harassment prevalence survey. We compare a group of individuals who stated they had been sexually harassed according to a legal definition with a group who denied having experienced sexual harassment according to this definition but who went on to report sexually harassing behaviours. The study offers important insights into how workplace sexual harassment comes to be defined and understood in the Australian community, as well as some possible explanations for persistently low rates of formal complaints.

Country of Origin and Internet Publication : Applying the Berne Convention in the Digital Age

Historically, determining the country of origin of a published work presented few challenges, because works were generally published physically – whether in print or otherwise – in a distinct location or few locations. However, publishing opportunities presented by new technologies mean that we now live in a world of simultaneous publication – works that are first published online are published simultaneously to every country in world in which there is Internet connectivity. While this is certainly advantageous for the dissemination and impact of information and creative works, it creates potential complications under the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), an international intellectual property agreement to which most countries in the world now subscribe. Under the Berne Convention’s national treatment provisions, rights accorded to foreign copyright works may not be subject to any formality, such as registration requirements (although member countries are free to impose formalities in relation to domestic copyright works). In Kernel Records Oy v. Timothy Mosley p/k/a Timbaland, et al. however, the Florida Southern District Court of the United States ruled that first publication of a work on the Internet via an Australian website constituted “simultaneous publication all over the world,” and therefore rendered the work a “United States work” under the definition in section 101 of the U.S. Copyright Act, subjecting the work to registration formality under section 411. This ruling is in sharp contrast with an earlier decision delivered by the Delaware District Court in Håkan Moberg v. 33T LLC, et al. which arrived at an opposite conclusion. The conflicting rulings of the U.S. courts reveal the problems posed by new forms of publishing online and demonstrate a compelling need for further harmonization between the Berne Convention, domestic laws and the practical realities of digital publishing. In this article, we argue that even if a work first published online can be considered to be simultaneously published all over the world it does not follow that any country can assert itself as the “country of origin” of the work for the purpose of imposing domestic copyright formalities. More specifically, we argue that the meaning of “United States work” under the U.S. Copyright Act should be interpreted in line with the presumption against extraterritorial application of domestic law to limit its application to only those works with a real and substantial connection to the United States. There are gaps in the Berne Convention’s articulation of “country of origin” which provide scope for judicial interpretation, at a national level, of the most pragmatic way forward in reconciling the goals of the Berne Convention with the practical requirements of domestic law. We believe that the uncertainties arising under the Berne Convention created by new forms of online publishing can be resolved at a national level by the sensible application of principles of statutory interpretation by the courts. While at the international level we may need a clearer consensus on what amounts to “simultaneous publication” in the digital age, state practice may mean that we do not yet need to explore textual changes to the Berne Convention.

Governing depression in Australian legal education : power, psychology and advanced liberal government

Legal educators in Australia have increasingly become concerned with the mental health of law students. The apparent risk posed by legal education to a student’s mental health has led to the deployment of a variety of measures to address these problems. By exploring these measures as productive power relations attempting to shape law students, this paper outlines how this government of depression is achieved, and the potential costs of these power relations. It examines one central Australian text offering advice about how students and law student societies can address depression, and argues that doing so not only involves students adopting particular practices of self-government to shape their legal personae, but also relies on an extension of the power relations of legal education. In addition, this paper will link this advice — which privatises the issue of depression, responsibilises individuals and communities, privileges psychological expertise, and seeks to govern ‘at a distance’ — to broader forms of social administration that presently characterise many Western societies. Doing so allows legal educators to reflect on the effects of their attempts to govern depression, and to consider new ways of altering the power relations of legal education.

Legal Profession Act 2007 s 319 - Whether costs agreement made after trial valid and enforceable - whether agreement had retrospective operation

The decision in QCOAL Pty Ltd v Cliffs Australia Coal Pty Ltd [2010] QSC 479 involved an examination of a number of issues relating to the assessment of costs under the Legal Profession Act 2007 (Qld). The decision highlights a range of issues which, in slightly different circumstances, may have deprived the successful party of the right to recover costs by reference to the costs agreement.

The workplace context of sexual harassment in Australia : policing the gender borders

The paper draws on a three year Australian Research Council funded project entitled Sexual Harassment in Australia: Context Outcomes and Prevention. The research to date suggests there is some slippage between legal definitions and community understandings of what constitutes sexual harassment. Moreover, while sexual harassment is often seen by the community and within organisations as the fault of one aberrant individual, in certain workplace contexts sexual harassment is used to ‘police the gender borders’, that is to exclude women and men who do not conform to the dominant workplace gender norms. This type of sexual harassment is a collective form of behaviour often perpetrated by co-workers in male-dominated workplaces which is designed to humiliate ‘outsiders’ so they appear incompetent and will be forced to leave the organisation. While much previous research that has focused on this type of sexual harassment has taken place in military and policing settings, our emerging findings suggest that it is present in a far broader range of workplace contexts. Prevention of this form of sexual harassment is challenging and goes to the heart of organisational culture and work organisation.

Book review : "Carbon Capture and Storage Emerging Legal and Regulatory Issues" edited by Ian Havercroft, Richard Macrory, Richard B Stewart, Oxford, Hart Publishing, 2011

As the international community struggles to find a cost-effective solution to mitigate climate change and reduce greenhouse gas emissions, carbon capture and storage (CCS) has emerged as a project mechanism with the potential to assist in transitioning society towards its low carbon future. Being a politically attractive option, legal regimes to promote and approve CCS have proceeded at an accelerated pace in multiple jurisdictions including the European Union and Australia. This acceleration and emphasis on the swift commercial deployment of CCS projects has left the legal community in the undesirable position of having to advise on the strengths and weaknesses of the key features of these regimes once they have been passed and become operational. This is an area where environmental law principles are tested to their very limit. On the one hand, implementation of this new technology should proceed in a precautionary manner to avoid adverse impacts on the atmosphere, local community and broader environment. On the other hand, excessive regulatory restrictions will stifle innovation and act as a barrier to the swift deployment of CCS projects around the world. Finding the balance between precaution and innovation is no easy feat. This is an area where lawyers, academics, regulators and industry representatives can benefit from the sharing of collective experiences, both positive and negative, across the jurisdictions. This exemplary book appears to have been collated with this philosophy in mind and provides an insightful addition to the global dialogue on establishing effective national and international regimes for the implementation of CCS projects...

A comparison of the psychological, social, and legal factors contributing to speeding and drink driving behaviour

Within Australia, motor vehicle injury is the leading cause of hospital admissions and fatalities. Road crash data reveals that among the factors contributing to crashes in Queensland, speed and alcohol continue to be overrepresented. While alcohol is the number one contributing factor to fatal crashes, speeding also contributes to a high proportion of crashes. Research indicates that risky driving is an important contributor to road crashes. However, it has been debated whether all risky driving behaviours are similar enough to be explained by the same combination of factors. Further, road safety authorities have traditionally relied upon deterrence based countermeasures to reduce the incidence of illegal driving behaviours such as speeding and drink driving. However, more recent research has focussed on social factors to explain illegal driving behaviours. The purpose of this research was to examine and compare the psychological, legal, and social factors contributing to two illegal driving behaviours: exceeding the posted speed limit and driving when over the legal blood alcohol concentration (BAC) for the drivers licence type. Complementary theoretical perspectives were chosen to comprehensively examine these two behaviours including Akers’ social learning theory, Stafford and Warr’s expanded deterrence theory, and personality perspectives encompassing alcohol misuse, sensation seeking, and Type-A behaviour pattern. The program of research consisted of two phases: a preliminary pilot study, and the main quantitative phase. The preliminary pilot study was undertaken to inform the development of the quantitative study and to ensure the clarity of the theoretical constructs operationalised in this research. Semi-structured interviews were conducted with 11 Queensland drivers recruited from Queensland Transport Licensing Centres and Queensland University of Technology (QUT). These interviews demonstrated that the majority of participants had engaged in at least one of the behaviours, or knew of someone who had. It was also found among these drivers that the social environment in which both behaviours operated, including family and friends, and the social rewards and punishments associated with the behaviours, are important in their decision making. The main quantitative phase of the research involved a cross-sectional survey of 547 Queensland licensed drivers. The aim of this study was to determine the relationship between speeding and drink driving and whether there were any similarities or differences in the factors that contribute to a driver’s decision to engage in one or the other. A comparison of the participants self-reported speeding and self-reported drink driving behaviour demonstrated that there was a weak positive association between these two behaviours. Further, participants reported engaging in more frequent speeding at both low (i.e., up to 10 kilometres per hour) and high (i.e., 10 kilometres per hour or more) levels, than engaging in drink driving behaviour. It was noted that those who indicated they drove when they may be over the legal limit for their licence type, more frequently exceeded the posted speed limit by 10 kilometres per hour or more than those who complied with the regulatory limits for drink driving. A series of regression analyses were conducted to investigate the factors that predict self-reported speeding, self-reported drink driving, and the preparedness to engage in both behaviours. In relation to self-reported speeding (n = 465), it was found that among the sociodemographic and person-related factors, younger drivers and those who score high on measures of sensation seeking were more likely to report exceeding the posted speed limit. In addition, among the legal and psychosocial factors it was observed that direct exposure to punishment (i.e., being detected by police), direct punishment avoidance (i.e., engaging in an illegal driving behaviour and not being detected by police), personal definitions (i.e., personal orientation or attitudes toward the behaviour), both the normative and behavioural dimensions of differential association (i.e., refers to both the orientation or attitude of their friends and family, as well as the behaviour of these individuals), and anticipated punishments were significant predictors of self-reported speeding. It was interesting to note that associating with significant others who held unfavourable definitions towards speeding (the normative dimension of differential association) and anticipating punishments from others were both significant predictors of a reduction in self-reported speeding. In relation to self-reported drink driving (n = 462), a logistic regression analysis indicated that there were a number of significant predictors which increased the likelihood of whether participants had driven in the last six months when they thought they may have been over the legal alcohol limit. These included: experiences of direct punishment avoidance; having a family member convicted of drink driving; higher levels of Type-A behaviour pattern; greater alcohol misuse (as measured by the AUDIT); and the normative dimension of differential association (i.e., associating with others who held favourable attitudes to drink driving). A final logistic regression analysis examined the predictors of whether the participants reported engaging in both drink driving and speeding versus those who reported engaging in only speeding (the more common of the two behaviours) (n = 465). It was found that experiences of punishment avoidance for speeding decreased the likelihood of engaging in both speeding and drink driving; whereas in the case of drink driving, direct punishment avoidance increased the likelihood of engaging in both behaviours. It was also noted that holding favourable personal definitions toward speeding and drink driving, as well as higher levels of on Type-A behaviour pattern, and greater alcohol misuse significantly increased the likelihood of engaging in both speeding and drink driving. This research has demonstrated that the compliance with the regulatory limits was much higher for drink driving than it was for speeding. It is acknowledged that while speed limits are a fundamental component of speed management practices in Australia, the countermeasures applied to both speeding and drink driving do not appear to elicit the same level of compliance across the driving population. Further, the findings suggest that while the principles underpinning the current regime of deterrence based countermeasures are sound, current enforcement practices are insufficient to force compliance among the driving population, particularly in the case of speeding. Future research should further examine the degree of overlap between speeding and drink driving behaviour and whether punishment avoidance experiences for a specific illegal driving behaviour serve to undermine the deterrent effect of countermeasures aimed at reducing the incidence of another illegal driving behaviour. Furthermore, future work should seek to understand the factors which predict engaging in speeding and drink driving behaviours at the same time. Speeding has shown itself to be a pervasive and persistent behaviour, hence it would be useful to examine why road safety authorities have been successful in convincing the majority of drivers of the dangers of drink driving, but not those associated with speeding. In conclusion, the challenge for road safety practitioners will be to convince drivers that speeding and drink driving are equally risky behaviours, with the ultimate goal to reduce the prevalence of both behaviours.

Social infrastructure planning and sustainable communities : Example from South East Queensland, Australia

From its early birth through to the twenty-first century, the planning for social infrastructure has been viewed as a crucial element in promoting the development of healthy communities. The existence of good social infrastructure in every level of human settlement (i.e. neighbourhoods, districts, regions etc.) is vital because it is considered to be an element that impacts positively and meaningfully on the quality of life for members of the targeted community. The increasing importance of the sustainable development agenda in human settlements has prompted concerns over the cost of the government’s failure to provide for adequate social infrastructure for their communities. Part of this failure is attributed to the inconsistent outcome from the use of traditional planning standards that are based on population-to-facility ratios. This paper explores the literature discussion on social infrastructure for sustainable communities. It examines how a participation-oriented, need-sensitive approach in the planning and provision of social infrastructure is used as an alternative to the traditional standards that are based on population-to-facility ratios. It does this by giving an overview of its application in the planning and provision of social infrastructure for Australia’s fastest growing region of South-East Queensland.

School policy responses to cyberbullying : an Australian legal perspective

The use of electronic means of contact to support repeated aggressive behaviour by an individual or group, that is intended to harm others – or ‘cyberbullying’ as it is now known – is increasingly becoming a problem for modern students, teachers, parents and schools. Increasingly victims of face to face bullying are looking to the law as a means of recourse, not only against bullies but also school authorities who have the legal responsibility to provide a safe environment for learning. It is likely that victims of cyberbullying will be inclined to do the same. This article examines a survey of the anti-bullying policies of a small sample of Australian schools to gauge their readiness to respond to the challenge of cyberbullying, particularly in the context of the potential liability they may face. It then uses that examination as a basis for identifying implications for the future design of school anti-bullying policies.