The need for legislative reform of the privity doctrine in commercial contracts in Malaysia : a comparative analysis

This thesis commences with the proposition that the first limb of the doctrine of privity causes injustice to third party beneficiaries in Malaysia, particularly in commercial contracts. The doctrine of privity has been the subject of criticism by the judiciary and academic commentators in common law jurisdictions, mainly directed at the first limb of the doctrine, whereby only parties to a contract can sue and be sued. The first limb prevents a third party from enforcing benefits conferred on them by those contracts thereby resulting in third parties suffering loss and injustice to those parties. In several common law countries, such as England, Australia, New Zealand and Singapore, legislative reform of the doctrine has occurred. The legislative reform has abrogated to a significant extent the doctrine of privity in commercial contracts. Malaysia is a common law country, where the doctrine of privity is still applied to contracts. An analysis of Malaysian case law demonstrates that the most affected third party beneficiaries are those seeking to enforce insurance and construction contracts. While a small number of other third parties to commercial contracts, such as agreements to pay for work done, sale and purchase agreements and tenancy agreements are also affected, the detriment is not as significant. As a consequence, this thesis focuses primarily on the impact of the doctrine of privity on commercial contracts in the areas of insurance and construction in Malaysia The thesis aims to recommend appropriate reforms to address the injustices arising from the privity doctrine for third parties seeking to obtain the benefit of insurance and construction contracts, which may also benefit third parties to other types of commercial contracts. While the Malaysian insurance, consumer protection, negotiable instruments and agency laws allow third party beneficiaries to enforce benefits in contracts, the rights are found to be inadequate. As not all third parties seeking to enforce an insurance or construction contract can rely upon the legislation, the injustice arising from the doctrine of privity remains and needs to be addressed. To achieve this aim, a comparative analysis of the rights of third party beneficiaries under insurance and construction contracts in Malaysia, Australia and England is undertaken. The results of the analysis are used to identify appropriate elements for a legislative framework guided by the three essential criteria for effective law reform developed in the thesis. The three criteria are certainty, public interest and justice. The thesis recommends first the enactment of general legislation applicable to all commercial contracts including insurance contracts. Secondly, the thesis recommends specific targeted legislation to address the injustice faced by third party beneficiaries in construction contracts.

Transition to palliative care for people living with metastatic melanoma : preliminary findings from a grounded theory study

Melanoma is the most aggressive form of skin cancer. Five-year survival rates for patients with metastatic melanoma are less than 10%, with a median survival of 6 to 9 months. Despite a number of clinical trials for metastatic melanoma, the treatment options for patients are limited. Palliation is often the main goal of treatment. This constructivist grounded theory study is seeking to examine how people with metastatic melanoma negotiate the transition to palliative care. The method of sampling is purposive and data have been generated through semi-structured interviews with those with metastatic melanoma and partners. Open, focused and theoretical coding of data from 13 interviews conducted to date has produced analytical concepts that reflect how the transition is negotiated. These concepts depict ways in which individuals interact with a fragmented health care system and how meanings are constructed around the rapid progression of the disease and uncertain treatment decisions. The preliminary findings reported upon here are being further explored with a larger sample. The findings to date highlight the need for improved coordination of services for those living with metastatic melanoma, and improved support for individuals dealing with uncertainty.

Development of a children's acute cough specific quality of life questionnaire (Pac-Qol)

The high burden of parental concern in children with chronic cough has been well documented. Acute cough in children (lasting less than 2 weeks) also has a significant impact on families, reflected by the number of doctor visits for cough. Currently there is no validated acute cough specific quality of life (QOL) measure for children. The objective of this study is to develop and validate an acute cough specific QOL questionnaire (PAC-QOL) for paediatric use. Here we present our data on item selection. Methods Two independent focus groups were conducted to determine relevant items. Parents discussed the impact of their child’s current or previous episodes of acute cough on their child, themselves and their family functioning. Transcripts were analyzed to determine whether discussions had reached an item saturation point. Items were also compared against our previously validated parent-centred children’s chronic cough specific QOL questionnaire (PC-QOL), which was used as a model. The newly developed acute cough specific QOL questionnaire is designed to assess the level of frequency of parents’ feelings and worry related to their child’s acute cough, using a 24-h time-point reference. Results Newly identified acute cough specific items include parental worry around whether or not they should take their child to a doctor or emergency department, and frequency of seeking assistance from friends and family. Conclusions While there are similarities between items identified for both acute and chronic cough, there are distinct features. Further data will be collected for item reduction and validation of this children’s acute cough specific QOL questionnaire.

Incorporating translation in qualitative studies : two case studies in education

Cross-language qualitative research in education continues to increase. However, there has been inadequate discussion in the literature concerning the translation process that ensures research trustworthiness applicable for bilingual researchers. Informed by the literature on evaluation criteria for qualitative data translation, this paper compares two different procedures for incorporating translation in education qualitative research to provide a clear depiction of the complexities involved in translating qualitative data and the strengths and weaknesses of each procedure. To maintain the trustworthiness of the qualitative research, it is necessary to minimise translation errors, provide detailed accounts of the translation process, involve more than one translator and remain open to scrutiny from those seeking to access the translation process. Taking into account the resource constraints often faced by novice qualitative researchers, this paper provides some strategies that can be employed in similar contexts.

Fashion system Shanghai : the advent of a new gatekeeper

The term fashion system describes inter-relationships between production and consumption illustrating how the production of fashion is a collective activity. For instance, Yuniya Kawamura notes systems for the production of fashion differ around the globe and are subject to constant change, and Jennifer Craik draws attention to an ‘array of competing and intermeshing systems cutting across western and non-western cultures. In China, Shanghai’s nascent fashion system seeks to emulate the Eurocentric system of Fashion Weeks and industry support groups. It promises emergent designers a platform for global competition, yet there are tensions from within. Interaction with a fashion system inevitably means becoming validated or legitimised. Legitimisation in turn depends upon gatekeepers who make aesthetic judgments about the status, quality and cultural value of a designers work. Notwithstanding the proliferation of fashion media, in Shanghai a new gatekeeper has arrived, seeking to filter authenticity from artifice, offering truth in a fashion market saturated with fakery and the hollowness of foreign consumptive practice, and providing a place of sanctuary for Chinese fashion design. Thus this paper discusses how new agencies are allowing designers in Shanghai greater control over their brand image while creating novel opportunities for promotion and sales. It explores why designers choose this new model and provides new knowledge of the curation of fashion by these gatekeepers.

The knowledge translation pathway for timely diagnosis of dementia

There has been significant debate about the value of screening for dementia, and the need for early diagnosis. Options include Gene testing, early risk assessment, screening, case finding and review when a patient or carer identify that they have symptoms. This paper is not focused on these early approaches to identifying people with dementia. It is focused on the period when a patient or a carer has recognised that there are some memory problems and they are seeking assistance with a diagnosis or explanation in relation to memory loss.

Punishment and 'the People' : Rescuing Populism from its Critics

The term 'penal populism' is now reflexively used by criminologists to describe what many see as a dominant trend within penal policymaking in many western countries. The epithet 'populist' is used with no Jess frequency by media and other public commentators to refer (always pejoratively) to this or that political announcement, policy or style of political leadership, whether the context be specifically related to crime or some other arena of public affairs. In most accounts 'penal populism' (or 'populist punitiveness': Bottoms, 1995) is treated as a composite term. The two words are inseparably coupled and it is the penal that receives most of the detailed attention. As in more general political commentary, populism is tacitly understood as a negative and rather dangerous phenomenon, suggestive of manipulation, shallow-ness and demagoguery: in short, a corruption of normal, healthy democratic politics. As against such accounts, I want to suggest that debate about penal policymaking and its future -and particularly the prospects for more progressive policymaking in the area -would be assisted if populism was taken more seriously both conceptually and politically. This requires a decoupling of the concept of populism from what is habitually taken to be its punitive partner and that which defines its content. Currently the term is used without clear definition, let alone conceptual elaboration, to reference political pathology. Instead populism should be examined as a regular, meaningful dimension of contemporary political practice that has to be understood and engaged, not just denounced and extirpated. That is, I am seeking to make a case for bringing populism in from the despised margins to the centre of political practice and reflection. I will also briefly consider some of the implications this may have for penal politics specifically.

Giving voice to service providers who work with survivors of torture and trauma

Clinicians who support people from refugee and asylum seeking backgrounds are routinely exposed to stories of trauma as part of their work. Hearing these stories can be highly distressing for clinicians, but simultaneously provide opportunities for positive personal growth. Adopting a longitudinal qualitative design, we interviewed twelve service providers at two time points a year apart. We used a semistructured interview protocol and analyzed the data according to interpretative phenomenological analysis. Five superordinate and 19 constituent themes emerged from the analysis at Time 1 and Time 2. We found that participants were both positively and negatively affected by their work, and their experiences remained relatively stable across time. The participants highlighted the use of organizational and personal coping strategies to help minimize distress and maximize wellbeing. Adopting a broad repertoire of such strategies is not only advantageous for the service providers, but ultimately for those people they seek to assist.

Emergency Health Services (EHS) : demand and service delivery models. monograph 3 : patients’ reasons and perceptions

Executive Summary Emergency health is a critical component of Australia’s health system and emergency departments (EDs) are increasingly congested from growing demand and blocked access to inpatient beds. The Emergency Health Services Queensland (EHSQ) study aims to identify the factors driving increased demand for emergency health and to evaluate strategies which may safely reduce the future demand growth. This monograph addresses the perspectives of users of both ambulance services and EDs. The research reported here aimed to identify the perspectives of users of emergency health services, both ambulance services and public hospital Emergency Departments and to identify the factors that they took into consideration when exercising their choice of location for acute health care. A cross-sectional survey design was used involving a survey of patients or their carers presenting to the EDs of a stratified sample of eight hospitals. A specific purpose questionnaire was developed based on a novel theoretical model which had been derived from analysis of the literature (Monograph 1). Two survey versions were developed: one for adult patients (self-complete); and one for children (to be completed by parents/guardians). The questionnaires measured perceptions of social support, health status, illness severity, self-efficacy; beliefs and attitudes towards ED and ambulance services; reasons for using these services, and actions taken prior to the service request. The survey was conducted at a stratified sample of eight hospitals representing major cities (four), inner regional (two) and outer regional and remote (two). Due to practical limitations, data were collected for ambulance and ED users within hospital EDs, while patients were waiting for or under treatment. A sample size quota was determined for each ED based on their 2009/10 presentation volumes. The data collection was conducted by four members of the research team and a group of eight interviewers between March and May 2011 (corresponding to autumn season). Of the total of 1608 patients in all eight emergency departments the interviewers were able to approach 1361 (85%) patients and seek their consent to participate in the study. In total, 911 valid surveys were available for analysis (response rate= 67%). These studies demonstrate that patients elected to attend hospital EDs in a considered fashion after weighing up alternatives and there is no evidence of deliberate or ill-informed misuse. • Patients attending ED have high levels of social support and self-efficacy that speak to the considered and purposeful nature of the exercise of choice. • About one third of patients have new conditions while two thirds have chronic illnesses • More than half the attendees (53.1%) had consulted a healthcare professional prior to making the decision. • The decision to seek urgent care at an ED was mostly constructed around the patient’s perception of the urgency and severity of their illness, reinforced by a strong perception that the hospital ED was the correct location for them (better specialised staff, better care for my condition, other options not as suitable). • 33% of the respondent held private hospital insurance but nevertheless attended a public hospital ED. Similarly patients exercised considered and rational judgements in their choice to seek help from the ambulance service. • The decision to call for ambulance assistance was based on a strong perception about the severity of the illness (too severe to use other means of transport) and that other options were not considered appropriate. • The decision also appeared influenced by a perception that the ambulance provided appropriate access to the ED which was considered most appropriate for their particular condition (too severe to go elsewhere, all facilities in one spot, better specialised and better care). • In 43.8% of cases a health care professional advised use of the ambulance. • Only a small number of people perceived that ambulance should be freely available regardless of severity or appropriateness. These findings confirm a growing understanding that the choice of professional emergency health care services is not made lightly but rather made by reasonable people exercising a judgement which is influenced by public awareness of the risks of acute health and which is most often informed by health professionals. It is also made on the basis of a rational weighing up of alternatives and a deliberate and considered choice to seek assistance from a service which the patient perceived was most appropriate to their needs at that time. These findings add weight to dispensing with public perceptions that ED and ambulance congestion is a result of inappropriate choice by patients. The challenge for health services is to better understand the patient’s needs and to design and validate services that meet those needs. The failure of our health system to do so should not be grounds for blaming the patient, claiming inappropriate patient choices.

The valuation of long life mines : current issues and methodologies

The past decade has seen an increasing focus on the mining and extractive industries in Australia. The significant increases in both new mines, commodity prices and employment opportunities has lead to considerable discussion on the value of this industry and the contribution that the industry makes to exports, GDP and the public in general. This debate has resulted in the introduction of the Mineral Resources Rent Tax being introduced in 2012. An issue that follows from the introduction of these taxes is the current exposure of property valuers to mine and extractive industry valuations and the most appropriate method that should be employed for valuing long life mines for rating and taxing purposes, finance and accounting purposes. This paper will provide a detailed review of past and current valuation methods for long life mines and will highlight the current issues and problem facing valuers who are currently working in or intend to carry out valuation work in this industry.

Teachers as researchers : a ‘fair dinkum’ learning legacy

As we encounter a policy landscape where increasingly the education lexicon includes keywords such as data, evidence, quality, standards, it is interesting to revisit Garth Boomer's contribution regarding teachers as researchers. As an early-career classroom teacher in the mid-1970s, I was inspired by Boomer's provocation to engage with research as a practitioner seeking evidence of learning (or not learning). Since that time, convinced of the power of teacher research in enhancing both student and teacher learning, I have devoted a good deal of my academic life to finding ways of supporting teachers to engage in research - from finding funds to facilitate teacher-researcher networks, through designing research projects with teacher-researchers as key collaborators, to embedding practitioner inquiry in university courses wherever possible pre- and in-service.

Supportive and palliative care for lung cancer patients

Lung cancer patients face poor survival and experience co-occurring chronic physical and psychological symptoms. These symptoms can result in significant burden, impaired physical and social function and poor quality of life. This paper provides a review of evidence based interventions that support best practice supportive and palliative care for patients with lung cancer. Specifically, interventions to manage dyspnoea, one of the most common symptoms experienced by this group, are discussed to illustrate the emerging evidence base in the field. The evidence base for the pharmacological management of dyspnoea report systemic opioids have the best available evidence to support their use. In particular, the evidence strongly supports systemic morphine preferably initiated and continued as a once daily sustained release preparation. Evidence supporting the use of a range of other adjunctive non-pharmacological interventions in managing the symptom is also emerging. Interventions to improve breathing efficiency that have been reported to be effective include pursed lip breathing, diaphragmatic breathing, positioning and pacing techniques. Psychosocial interventions seeking to reduce anxiety and distress can also improve the management of breathlessness although further studies are needed. In addition, evidence reviews have concluded that case management approaches and nurse led follow-up programs are effective in reducing breathlessness and psychological distress, providing a useful model for supporting implementation of evidence based symptom management strategies. Optimal outcomes from supportive and palliative care interventions thus require a multilevel approach, involving interventions at the patient, health professional and health service level.

Inquiry pedagogy and the Australian Curriculum

This paper explores inquiry skills in the Australian Curriculum in relation to inquiry learning pedagogy. Inquiry skills in the Australian Curriculum are represented as questioning skills (i.e. posing and evaluating questions and hypotheses), information literacy (i.e. seeking, evaluating, selecting and using information), ICT literacy (i.e. fluency with computer hardware and software) and discipline specific skills (i.e. data gathering, mathematical measurement, data analysis and presentation of data). This paper provides an explanation of inquiry learning pedagogy that complements the Australian Curriculum inquiry skills.

Pharmacist, general practitioner, and nurse perceptions, experiences, and knowledge of medication dosage form modification

Background: People often modify oral solid dosage forms when they experience difficulty swallowing them. Modifying dosage forms may cause adverse effects to the patient, and the person undertaking the modification. Pharmacists are often the first point of contact for people in the general community seeking advice regarding medications. Nurses are at the forefront of administering medications to patients and are likely to be most directly affected by a patient’s swallowing ability, while general practitioners (GPs) are expected to consider swallowing abilities when prescribing medications. Objective: To compare the perspectives and experiences of GPs, pharmacists, and nurses regarding medication dosage form modification and their knowledge of medication modification. Method: Questionnaires tailored to each profession were posted to 630 GPs, and links to an online version were distributed to 2,090 pharmacists and 505 nurses. Results: When compared to pharmacists and GPs, nurses perceived that a greater proportion of the general community modified solid dosage forms. Pharmacists and GPs were most likely to consider allergies and medical history when deciding whether to prescribe or dispense a medicine, while nurses’ priorities were allergies and swallowing problems when administering medications. While nurses were more likely to ask their patients about their ability to swallow medications, most health professionals reported that patients “rarely” or “never” volunteered information about swallowing difficulties. The majority of health professionals would advise a patient to crush or split noncoated non-sustained-release tablets, and would consult colleagues or reference sources for sustained-release or coated tablets. Health professionals appeared to rely heavily upon the suffix attached to medication names (which suggest modified release properties) to identify potential problems associated with modifying medications. Conclusion: The different professional roles and responsibilities of GPs, pharmacists, and nurses are associated with different perspectives of, and experiences with, people modifying medications in the general community and knowledge about consequences of medication modification.

Designing REDD+ to be just : considerations for a legally binding instrument

The international climate regime is in the process of negotiating a legally binding instrument concerning Reducing Emissions from Deforestation and Degradation (REDD+). The paper starts by exploring the complex web of decisions and advices that currently regulate REDD+ initiatives within the international climate regime. This is followed by an analysis of justice issues raised by non-state actors in the REDD+ international negotiations. The paper concludes by building on this analysis to identify some relevant considerations when seeking to design a just and legally binding REDD+ instrument. These considerations include: the impact of market- versus fund-based investment channels, the importance of defining a clear objective; the inclusion and role of international principles such as sovereignty, preventative action, common but differentiated responsibility, sustainable development, and Free, Prior, and Informed Consent; the appropriate design of REDD+ safeguards and the inclusion of grievance mechanisms within the instrument which provide guidance on resolving disputes associated with REDD+ investment.