Full compensation no longer sacrosanct : reflections on the past and future economic loss ‘cap’ for high income earners

The civil liability provisions relating to the assessment of damages for past and future economic loss have abrogated the common law principle of full compensation by imposing restrictions on the damages award, most commonly by a “three times average weekly earnings” cap. This consideration of the impact of those provisions is informed by a case study of the Supreme Court of Victoria Court of Appeal decision, Tuohey v Freemasons Hospital (Tuohey) , which addressed the construction and arithmetic operation of the Victorian cap for high income earners. While conclusions as to operation of the cap outside of Victoria can be drawn from Tuohey, a number of issues await judicial determination. These issues, which include the impact of the damages caps on the calculation of damages for economic loss in the circumstances of fluctuating income; vicissitudes; contributory negligence; claims per quod servitum amisit; and claims by dependants, are identified and potential resolutions discussed.

Lifting the joint venture veil : liability of related entities for misleading conduct of agents engaged by joint venture partners

At common law, a corporation may be liable vicariously for the conduct of its appointed agents, employees or directors. This generally requires the agent or employee to be acting in the course of his or her agency or employment and, in the case of representations, to have actual or implied authority to make the representations. The circumstances in which a corporation may be liable for the conduct of its agents, employees or directors is broadened under the Australian Consumer Law (ACL) to where one of these parties engages in conduct “on behalf of” the corporation. As the decision in Bennett v Elysium Noosa Pty Ltd (in liq) demonstrates, this may extend to liability for the misleading conduct of a salesperson for the joint venture to parties who are not formal members of the joint venture, but where the joint venture activities are within the course of the entity’s “business, affairs or activities”.

Howzat! The High Court, negligence and indoor cricket

This article examines the High Court case of Woods v Multi-Sport that considers the liability of an indoor cricket centre for an injury sustained by a player. It is a good example of how the issue of breach is dealt with in a sports law context and also shows how difficult it can be to determine when a sporting body will in breach of a duty of care owed to its participants.

Facebook, Twitter, SMS and YouTube : the ramifications and risks for surgeons

Social media revolution has impacted on how people interact with one another. This has been a worldwide phenomenon. Whilst social media had its genesis in the personal and private realm its use has expanded exponentially to professional and business contexts, as well as being adopted by governments, politicians, journalists – everyone in just about every walk of life. Although at first the uptake was slow, surgeons and other health professionals are now using social media in their professional as well as personal capacity. This comes with significant advantages and opportunities for improving surgical practice and for facilitating attending communication, but it also comes with certain risks, including legal liability. This paper outlines the ways in which social media including, Facebook, Twitter, YouTube and SMS, is increasingly being employed in surgical practice and explains the legal and ethical consequences that may inadvertently arise in its official, as well as, unofficial use.

Soil N2O and CO2 emissions from cotton in Australia under varying irrigation management

Irrigation is known to stimulate soil microbial carbon and nitrogen turnover and potentially the emissions of nitrous oxide (N2O) and carbon dioxide (CO2). We conducted a study to evaluate the effect of three different irrigation intensities on soil N2O and CO2 fluxes and to determine if irrigation management can be used to mitigate N2O emissions from irrigated cotton on black vertisols in South-Eastern Queensland, Australia. Fluxes were measured over the entire 2009/2010 cotton growing season with a fully automated chamber system that measured emissions on a sub-daily basis. Irrigation intensity had a significant effect on CO2 emission. More frequent irrigation stimulated soil respiration and seasonal CO2 fluxes ranged from 2.7 to 4.1 Mg-C ha−1 for the treatments with the lowest and highest irrigation frequency, respectively. N2O emission happened episodic with highest emissions when heavy rainfall or irrigation coincided with elevated soil mineral N levels and seasonal emissions ranged from 0.80 to 1.07 kg N2O-N ha−1 for the different treatments. Emission factors (EF = proportion of N fertilizer emitted as N2O) over the cotton cropping season, uncorrected for background emissions, ranged from 0.40 to 0.53 % of total N applied for the different treatments. There was no significant effect of the different irrigation treatments on soil N2O fluxes because highest emission happened in all treatments following heavy rainfall caused by a series of summer thunderstorms which overrode the effect of the irrigation treatment. However, higher irrigation intensity increased the cotton yield and therefore reduced the N2O intensity (N2O emission per lint yield) of this cropping system. Our data suggest that there is only limited scope to reduce absolute N2O emissions by different irrigation intensities in irrigated cotton systems with summer dominated rainfall. However, the significant impact of the irrigation treatments on the N2O intensity clearly shows that irrigation can easily be used to optimize the N2O intensity of such a system.

Internet and e-commerce law, business and policy

Over the last two decades, the internet and e-commerce have reshaped the way we communicate, interact and transact. In the converged environment enabled by high speed broadband, web 2.0, social media, virtual worlds, user-generated content, cloud computing, VoIP, open source software and open content have rapidly become established features of our online experience. Business and government alike are increasingly using the internet as the preferred platform for delivery of their goods and services and for effective engagement with their clients. New ways of doing things online and challenges to existing business, government and social activities have tested current laws and often demand new policies and laws, adapted to the new realities. The focus of this book is the regulation of social, cultural and commercial activity on the World Wide Web. It considers developments in the law that have been, and continue to be, brought about by the emergence of the internet and e-commerce. It analyses how the law is applied to define rights and obligations in relation to online infrastructure, content and practices.

Environmental incidents in a developing country and corporate environmental disclosures : a study of a multinational gas company

Purpose – The purpose of this paper is to examine the environmental disclosure initiatives of Niko Resources Ltd – a Canada-based multinational oil and gas company – following the two major environmental blowouts at a gas field in Bangladesh in 2005. As part of the examination, the authors particularly focus on whether Niko's disclosure strategy was associated with public concern pertaining to the blowouts. Design/methodology/approach – The authors reviewed news articles about Niko's environmental incidents in Bangladesh and Niko's communication media, including annual reports, press releases and stand-alone social responsibility report over the period 2004-2007, to understand whether news media attention as proxy for public concern has an impact on Niko's disclosure practices in relation to the affected local community in Bangladesh. Findings – The findings show that Niko did not provide any non-financial environmental information within its annual reports and press releases as a part of its responsibility to the local community which was affected by the blowouts, but it did produce a stand-alone report to address the issue. However, financial environmental disclosures, such as the environmental contingent liability disclosure, were adequately provided through annual reports to meet the regulatory requirements concerning environmental persecutions. The findings also suggest that Niko's non-financial disclosure within a stand-alone report was associated with the public pressures as measured by negative media coverage towards the Niko blowouts. Research limitations/implications – This paper concludes that the motive for Niko's non-financial environmental disclosure, via a stand-alone report, reflected survival considerations: the company's reaction did not suggest any real attempt to hold broader accountability for its activities in a developing country.

Sources of ultrafine particles and chemical species along a traffic corridor : comparison of the results from two receptor models

Particulate matter is common in our environment and has been linked to human health problems particularly in the ultrafine size range. A range of chemical species have been associated with particulate matter and of special concern are the hazardous chemicals that can accentuate health problems. If the sources of such particles can be identified then strategies can be developed for the reduction of air pollution and consequently, the improvement of the quality of life. In this investigation, particle number size distribution data and the concentrations of chemical species were obtained at two sites in Brisbane, Australia. Source apportionment was used to determine the sources (or factors) responsible for the particle size distribution data. The apportionment was performed by Positive Matrix Factorisation (PMF) and Principal Component Analysis/Absolute Principal Component Scores (PCA/APCS), and the results were compared with information from the gaseous chemical composition analysis. Although PCA/APCS resolved more sources, the results of the PMF analysis appear to be more reliable. Six common sources identified by both methods include: traffic 1, traffic 2, local traffic, biomass burning, and two unassigned factors. Thus motor vehicle related activities had the most impact on the data with the average contribution from nearly all sources to the measured concentrations higher during peak traffic hours and weekdays. Further analyses incorporated the meteorological measurements into the PMF results to determine the direction of the sources relative to the measurement sites, and this indicated that traffic on the nearby road and intersection was responsible for most of the factors. The described methodology which utilised a combination of three types of data related to particulate matter to determine the sources could assist future development of particle emission control and reduction strategies.

Towards an understanding of model driven process configuration and its support at large

The common presupposition of Enterprise Systems (ES) is that they lead to significant efficiency gains. However, this is only the case for well-implemented ES that meet organisational requirements. The list of major ES implementation failures is as long as the list of success stories. We argue here that this arises from a more fundamental problem, the functionalist approach to ES development and provision. As long as vendors will continue to develop generic, difficult-to-adapt ES packages, this problem will prevail because organisations have a non-generic character. A solution to this problem can only consist in rethinking the way ES packages are provided. We propose a strict abstraction layer of ES functionalities and their representation as conceptual models. ES vendors must provide sufficient means for configuring these conceptual models. We discuss in this paper what generic situations can occur during process model configuration in order to understand process model configuration in depth.

The BRICS and the responsibility to protect : lessons from the Libyan and Syrian crises

The emerging ‘responsibility to protect’ (R2P) principle presents a significant challenge to the BRICS (Brazil, Russia, India, China and South Africa) states’ traditional emphasis on a strict Westphalian understanding of state sovereignty and non-interference in domestic affairs. Despite formally endorsing R2P at the 2005 World Summit, each of the BRICS has, to varying degrees, retained misgivings about coercive measures under the doctrine’s third pillar. This paper examines how these rising powers engaged with R2P during the 2011–2012 Libyan and Syrian civilian protection crises. The central finding is that although all five states expressed similar concerns over NATO’s military campaign in Libya, they have been unable to maintain a common BRICS position on R2P in Syria. Instead, the BRICS have splintered into two sub-groups. The first, consisting of Russia and China, remains steadfastly opposed to any coercive measures against Syria. The second, comprising the democratic IBSA states (India, Brazil and South Africa) has displayed softer, more flexible stances towards proposed civilian protection measures in Syria, although these three states also remain cautious about the implementation of R2P’s coercive dimension. This paper identifies a number of factors which help to explain this split, arguing that the failure to maintain a cohesive BRICS position on R2P is unsurprising given the many internal differences and diverging national interests between the BRICS members. Overall, the BRICS’ ongoing resistance to intervention is unlikely to disappear quickly, indicating that further attempts to operationalize R2P’s third pillar may prove difficult.

Volunteers 'piggy-backing' on their private insurance : an uncertain protection against liability

Volunteering is a very important part of life in Australia with an estimated 36% of the adult population volunteering in 2010. Voluntary work generates economic benefits, addresses community needs and develops the social networks that form the backbone of civil society. Without volunteers, many essential services would either cease to exist or become too expensive for many people to afford. These volunteers, who by definition are not in receipt of any remuneration for their work and services, are exposed to personal injury and to legal liability in the discharge of their functions. It is therefore appropriate that statutory protection is extended to volunteers and that volunteer organisations procure public liability and personal accident cover where possible. However, given the patchwork quilt of circumstances where statutory or institutional cover is available to volunteers and the existence of many and diverse exclusions, it is important to have regard also to what scope a volunteer may have to avail themselves of protection against liability for volunteering activity by relying upon their own personal insurance cover. This article considers the extent of private insurance cover and its availability to volunteers under home and contents insurance and under comprehensive motor vehicle insurance. The most common policies in the Australian market are examined and the uncertain nature of protection against liability afforded by these policies is discussed. This uncertainty could be reduced should the Federal Government through amendments to the Insurance Contracts Regulations standardise the circumstances and extent to which liability protection was afforded to an insured holding home and contents insurance and comprehensive motor vehicle insurance cover.

Essays on volatility and liquidity in financial markets

The price formation of financial assets is a complex process. It extends beyond the standard economic paradigm of supply and demand to the understanding of the dynamic behavior of price variability, the price impact of information, and the implications of trading behavior of market participants on prices. In this thesis, I study aggregate market and individual assets volatility, liquidity dimensions, and causes of mispricing for US equities over a recent sample period. How volatility forecasts are modeled, what determines intradaily jumps and causes changes in intradaily volatility and what drives the premium of traded equity indexes? Are they induced, for example, by the information content of lagged volatility and return parameters or by macroeconomic news, changes in liquidity and volatility? Besides satisfying our intellectual curiosity, answers to these questions are of direct importance to investors developing trading strategies, policy makers evaluating macroeconomic policies and to arbitrageurs exploiting mispricing in exchange-traded funds. Results show that the leverage effect and lagged absolute returns improve forecasts of continuous components of daily realized volatility as well as jumps. Implied volatility does not subsume the information content of lagged returns in forecasting realized volatility and its components. The reported results are linked to the heterogeneous market hypothesis and demonstrate the validity of extending the hypothesis to returns. Depth shocks, signed order flow, the number of trades, and resiliency are the most important determinants of intradaily volatility. In contrast, spread shock and resiliency are predictive of signed intradaily jumps. There are fewer macroeconomic news announcement surprises that cause extreme price movements or jumps than those that elevate intradaily volatility. Finally, the premium of exchange-traded funds is significantly associated with momentum in net asset value and a number of liquidity parameters including the spread, traded volume, and illiquidity. The mispricing of industry exchange traded funds suggest that limits to arbitrage are driven by potential illiquidity.