A growing good faith in contracts

The Supreme Court of Canada's ruling in Bhasin v Hrynew represents a significant step forward in harmonising the multiple strands of debate surrounding the existence of a good faith provision in common law contracting. Although a general principle of good faith (derived from Roman Law) is recognized by most civil law systems and a growing number of common law countries have embraced statutory provisions towards this end, Bhasin v Hrynew is argued to be a critical advance in catalysing uniform acceptance of good faith as a fundamental principle essential to support an increasingly integrated global commercial environment.

Liability and statutory defence in Queensland

Context Increasing client awareness of valuer's duty of care - Webb Resolutions Ltd v E.Surv Ltd [2012] - Provident Capital Limited v John Virtue Pty Ltd (No 2) [2012] - Including disciplinary actions: Valuers Registration Board of Qld v Conroy [2013] QCAT 688 combined with Post-GFC ‘drops’ in value!

What’s law got to do with it?: Medical negligence, causation and the use of policy

In a medical negligence context, and under the causation provisions enacted pursuant to Civil Liability Legislation in most Australian jurisdictions, the normative concept of “scope of liability” requires a consideration of whether or not and why a medical practitioner should be responsible for a patient’s harm. As such, it places a limit on the extent to which practitioners are deemed liable for a breach of the duty of care owed by them, in circumstances where a legal factual connection between that breach and the causation of a patient’s harm has already been shown. It has been said that a determination of causation requires ‘the identification and articulation of an evaluative judgement by reference to “the purposes and policy of the relevant part of the law”’: Wallace v Kam (2013) 297 ALR 383, 388. Accordingly, one of the normative factors falling within scope of liability is an examination of the content and purpose of the rule or duty of care violated – that is, its underlying policy and whether this supports an attribution of legal responsibility upon a practitioner. In this context, and with reference to recent jurisprudence, this paper considers: the policy relevant to a practitioner’s duty of care in each of the areas of diagnosis, treatment and advice; how this has been used to determine an appropriate scope of liability for the purpose of the causation inquiry in medical negligence claims; and whether such an approach is problematic for medical standards or decision-making.

Submission to Queensland Law Reform Commission WP 73 Review of Child Protection Mandatory Reporting Laws for the Early Childhood Education and Care Sector

In 2015 the QLRC is conducting an inquiry into whether to extend legislative mandatory reporting duties for physical abuse and sexual abuse to early childhood education and care practitioners. The current legislation does not require these practitioners to report suspected cases of significant harm from physical or sexual absue to child welfare agencies. Based on the literature, and a multidisciplinary analysis, our overall recommendation is that we endorse the extension to selected early childhood education and care practitioners of Queensland’s current mandatory reporting duty in the Child Protection Act 1999 s 13E.

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.

Voice, deliberation, resistance and persuasion through participatory journalism business models

The pervasive use of the World Wide Web by the general population has created a cultural shift throughout the world. It has enabled more people to share more information about more events and issues than was possible before its general use. As a consequence, it has transformed traditional news media’s approach to almost every aspect of journalism, with many organisations restructuring their philosophy and practice to include a variety of participatory spaces/forums where people are free to engage in deliberative dialogue about matters of public importance. This paper draws from an international collective case study that showcases various approaches to participatory online news journalism during the period 1997–2011 (Adams, 2013). The research finds differences in the ways in which public service, commercial, and independent news media give voice to the public, and ultimately in their approach to journalism’s role as the Fourth Estate––one of the key institutions of democracy. The work is framed by the notion that journalism in democratic societies has a crucial role in ensuring citizens are informed and engaged with public affairs. An examination of four media models, OhmyNews International, News Corp Australia (formerly News Limited), the Guardian and the British Broadcasting Corporation (BBC), showcases the various approaches to participatory online news journalism and how each provides different avenues for citizen engagement. Semistructured in-depth interviews with some of the key senior journalists and editors provide specific information on comparisons between the distinctive practices in each of their employer organisations.

Rauta ja Ristilukki : Vilho Helasen salapoliisiromaanisarja

Vilho Helanen (1899 1952) was a right-wing opinion leader in interwar Finland. But following the Second World War, the political situation in the country changed dramatically, and Helanen lost his job as well as his influential social station. He began to write detective fiction, and between 1946 and 1952 published seven novels (one had already been published in 1941). The novels protagonist is Kaarlo Rauta, a lawyer who acts as a private investigator. This doctoral dissertation analyzes the Rauta series from three different points of view. It investigates the extent to which the author s life and his strong political background appears in the series. The study also situates the series within Finnish society during and after the war. Finally, the study examines the Rauta series in terms of the genre conventions of detective fiction, that is, the study compares the Rauta series with other Finnish crime fiction and international crime fiction written during the 1940s. The Iron and The Cross Spider uses the term citizenship education when analyzing how Helanen implicitly continued his political teaching when writing crime fiction. The series includes a didactic register, which instructs the middle class in appropriate behaviour and manners, and the social roles entailed by gender. A special area of focus in this didacticism are norms of correct masculinity and femininity. The study devotes specific attention to the status of character in the series. The masculine detective and his beautiful wife are prominent, as is the fictive community and the tensions that criss-cross it. After the war, the Rauta series takes on a positive tone. Men can earn their place in society by fighting at the front, and after the war a homosocial bond exists between all the former soldiers. Women are shut out of the war experience. The detective hero has served in the war, but he is physically and psychologically untouched by it. The community is threatened by artists and immoral bohemians, but not the working class. Artists have affairs outside of marriage and abnormal sexual habits. The members of the upper class are also described as immoral in the series. Sadistic sexuality is often characteristic of the criminals, who are mostly femme fatales in the fashion of hard-boiled detective stories and film noir. Also, strong feelings have a negative connotation in the series, and showing them is forbidden behaviour. Men become criminals when they are insufficiently masculine or when they have not carried out their duty by fighting in the war. Helanen portrayed the communists, his political opponents from the 1930s, as criminals in his post-war series, but they were not openly represented as Russians or communists. Instead, Helanen used the cross spider as their symbol, a symbol which the readers of the time would recognize.

Fostering interpersonal trust on social media: Physicians' perspectives and experiences

Background The problem of developing and sustaining mutual trust is one of the main barriers to knowledge sharing on social media platforms such as blogs, wikis, micro-blogs and social networking websites. While many studies argue that mutual trust is necessary for online communication and knowledge sharing, few have actually explored and demonstrated how physicians can establish and sustain trusted relationships on social media. Objectives To identify approaches through which physicians establish interpersonal trust on social media. Methods Twenty-four physicians, who were active users of social media, were interviewed using a semi-structured approach between 2013 and 2014. Snowball sampling was employed for participant recruitment. The data were analysed using a thematic analysis approach. Results Physicians trust their peers on social media in a slightly different way than in face-to-face communication. The study found that the majority of participants established trust on social media mainly through previous personal interaction, authenticity and relevancy of voice, professional standing, consistency of communication, peer recommendation, and non-anonymous and moderated sites. Conclusions Healthcare professionals need to approach social media carefully when using it for knowledge sharing, networking and developing trusted relations with like-minded peers.

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.

Moments of flux in intermediary liability for copyright infringement

This chapter provides an overview of a recent shift in regulatory strategies to address copyright infringement toward enlisting the assistance of general purpose Internet Service Providers. In Australia, the High Court held in 2012 that iiNet, a general purpose ISP, had no legal duty to police what its subscribers did with their internet connections. We provide an overview of three recent developments in Australian copyright law since that decision that demonstrate an emerging shift in the way that obligations are imposed on ISPs to govern the actions of their users without relying on secondary liability. The first is a new privately negotiated industry code that introduces a 'graduated response' system that requires ISPs to pass on warnings to subscribers who receive allegations of infringement. The second involves a recent series of Federal Court cases where rightsholders made a partially successful application to require ISPs to hand over the identifying details of subscribers whose households are alleged to have infringed copyright. The third is a new legislative scheme that will require ISPs to block access to foreign websites that 'facilitate' infringement. We argue that these shifts represent a greater sophistication in approaches to enrolling general purpose intermediaries in the regulatory project. We also suggest that these shifts represent a potentially disturbing trend towards enforcement of copyright law in a way that does not provide strong safeguards for the legitimate constitutional due process interests of users. We conclude with a call for greater attention and research to better understand how intermediaries make decisions when governing the conduct of users, how those decisions may be influenced by both state and non-state actors, and how the rights of individuals to due process can be adequately protected.

A Comparison of the Implementation of the Employment Provisions of the Americans with Disabilities Act of 1990 (ADA) in the United States and the Disability Discrimination Act (DDA) 1995 in the United Kingdom

This summarizes the results of recently conducted surveys in the United States and Britain to assess employer response in each of these countries to their respective employment disability nondiscrimination legislation.

Questions & Answers About Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination on the basis of disability. Title I of the ADA makes it unlawful for any employer to discriminate against a qualified applicant or employee because of a disability in any aspect of employment. The ADA covers employers with 15 or more employees, including state and local governments. Section 501 of the Rehabilitation Act provides the same protections for federal government employees and applicants. In addition, most states have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and provide protections in addition to those available under the ADA.

Using High Stakes Tests to Raise Achievement

“Educational reformers and most of the American public think that teachers ask too little of their pupils. These low expectations, they believe, result in watered-down curricula and a tolerance of mediocre teaching and inappropriate student behavior. The prophecy of low achievement thus becomes self-fulfilling.”

Opettajan ja vanhemman vuorovaikutus ja keskustelun kehykset koululaisen kehityskeskusteluissa

The aim of the study is to describe the consultation discussions between the teacher, parents and the student. The structure and the interaction of the conversation is in the focus of the study. The study explicates the organization of the interaction and orientation of the participants in the conversation. The study approaches conversation as a dynamic activity and studies it from the point of view of the participants. Assessment is one of the themes involved in the teacher-parent-student consultation discussions. Assessment as a duty of the school brings an institutional aspect in the conversation, but the ways it is implemented and expressed varies in the conversational situations. Participants communication and interaction in the situation influences the ways the consultation discussions are carried out. The framework of the study is based on the ethno methodological approach where a social situation and its meaning is seen negotiated by the participants. The interest of the study is to find out how the participants implement mutual understanding and how it can be observed in their interaction. Quantitatively, the interaction of the participants is described in the framework of the interaction analysis and linked to the socio-emotional and rational aspects of the interaction. The empirical part of the study consists of data collected with questionnaires and videotaped conversations. The main research problems of the study are, how the teachers and parents described the consultation discussions and how the interaction of the teacher, the parent and the student is organized during the conversation. The background of the study is linked to the previous studies concerning co-operation between the teacher and the parent and home-school relationship. This part of the study aims to enlighten how the consultation discussions are part of the co-operation in the school context. The questionnaires link the consultation discussions to the every day co-operation between the teacher and the family. Expectations and results described by the parents and teachers are analysed. Videotaped data is both analysed quantitatively based on interaction analysis and approached with the ethno methodological interpretation. The interest of my study is, how people participate in the situation of consultation discussion, how they orientate in it and influence the conversation. The analyses of the consultation discussions are based on the both quantitative interaction analysis and ethno methodological frame analysis. With the theoretical approach of my study I want to describe and enlighten the organization of the interaction and ways of orientation of the participants in consultation discussions. Keywords: consultation discussion, interaction, evaluation, orientation in the conversation, home-school cooperation, quantitative interaction analysis, frame analysis