Valuers? Liability : the impact of torts reform in Queensland

Historically there has been a correlation between the economic cycles and litigation in the area of professional negligence relating to valuers. Negligence actions have principally been instigated by financiers for valuations prepared during more buoyant economic times but where there has been a subsequent loss due to a reduction in property value. More specifically during periods of economic downturn such as 1982 to 1983 and 1990 to 1998 there has been an increased focus by academic writers on professional negligence as it relates to property valuers. Based on historical trends it is anticipated that the end of an extended period of economic prosperity such as has been experienced in Australia, will once again be marked by an increase in litigation against valuers for professional negligence. However, the context of valuers liability has become increasingly complex as a result of statutory reforms introduced in response to the Review of the Law of Negligence Final Report 2002 (“the IPP Report”), in particular the introduction of Civil Liability Acts introducing proportionate liability provisions. This paper looks at valuers’ liability for professional negligence in the context of statutory reforms in Queensland and recent case law to determine the most significant impacts of recent statutory reform on property valuers.

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.

Civil Liability and Other Legislation Amendment Act 2010 (Qld)

On 17 March 2010, the Civil Liability and Other Legislation Amendment Act 2010 (Qld) was assented to.

Self-Government and the fashioning of resilient personae : legal education, criminal justice, and the government of mental health

This paper explores attempts to shape resilient personae through relations of self-government, and highlights the way that this features as part of advanced liberal forms of rule. As an example of this process, it focuses on the way that undergraduate law students are encouraged to fashion resilient personae throughout their legal studies, so as to avoid, or effectively respond to, experiences that may have a detrimental effect on their mental health. This paper argues that the production of such resilience relies on students being encouraged to take up psychologically- and biomedically-infused subject positions, becoming well-disciplined subjects, entrepreneurs of the self, and even virtuous persons. It highlights that the fashioning of resilient personae in this way involves extensions to the targets and practices of self-government and reinforces advanced liberal government. The paper then suggests how insights into fashioning resilience in this context can inform further research on resilience, particularly resilience produced within criminal justice professionals.

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. 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 through thresholds and caps which has limited the liability of health professionals in medical negligence actions.

The role of law in responding to climate change : emerging regulatory, liability and market approaches

Climate change presents as the archetypal environmental problem with short-term economic self-interest operating to the detriment of the long-term sustainability of our society. The scientific reports of the Intergovernmental Panel on Climate Change strongly assert that the stabilisation of emissions in the atmosphere, to avoid the adverse impacts of climate change, requires significant and rapid reductions in ‘business as usual’ global greenhouse gas emissions. The sheer magnitude of emissions reductions required, within this urgent timeframe, will necessitate an unprecedented level of international, multi-national and intra-national cooperation and will challenge conventional approaches to the creation and implementation of international and domestic legal regimes. To meet this challenge, existing international, national and local legal systems must harmoniously implement a strong international climate change regime through a portfolio of traditional and innovative legal mechanisms that swiftly transform current behavioural practices in emitting greenhouse gases. These include the imposition of strict duties to reduce emissions through the establishment of strong command and control regulation (the regulatory approach); mechanisms for the creation and distribution of liabilities for greenhouse gas emissions and climaterelated harm (the liability approach) and the use of innovative regulatory tools in the form of the carbon trading scheme (the market approach). The legal relations between these various regulatory, liability and market approaches must be managed to achieve a consistent, compatible and optimally effective legal regime to respond to the threat of climate change. The purpose of this thesis is to analyse and evaluate the emerging legal rules and frameworks, both international and Australian, required for the effective regulation of greenhouse gas emissions to address climate change in the context of the urgent and deep emissions reductions required to minimise the adverse impacts of climate change. In doing so, this thesis will examine critically the existing and potential role of law in effectively responding to climate change and will provide recommendations on the necessary reforms to achieve a more effective legal response to this global phenomenon in the future.

Legal liability for carbon capture and storage in Australia : where should the losses fall?

This article presents a critical analysis of the current and proposed CCS legal frameworks across a number of jurisdictions in Australia in order to examine the legal treatment of the risks of carbon leakage from CCS operations. It does so through an analysis of the statutory obligations and liability rules established under the offshore Commonwealth and Victorian regimes, and onshore Queensland and Victorian legislative frameworks. Exposure draft legislation for CCS laws in Western Australia is also examined. In considering where the losses will fall in the event of leakage, the potential tortious and statutory liabilities of private operators and the State are addressed alongside the operation of statutory protections from liability. The current legal treatment of CCS under the new Australian Carbon Pricing Mechanism is also critiqued.

Does section 420A impose ‘strict liability’ upon controllers for acts or omissions of agents and experts?

This article addresses in depth the question of whether section 420A of the Corporations Act 2001 (Cth) imposes ‘strict liability’ upon a controller for the failure of an agent or expert to take reasonable care. The weight of existing authority appears to suggest that controllers are liable under s 420A for the carelessness of their agents or expert advisers. However, a closer analysis of the text of the provision and relevant Australian and UK case law demonstrates that this aspect of the statutory construction of s 420A remains very much an open question. This article ultimately contends for a construction of s 420A which requires a controller to adequately supervise and scrutinise, but which does not render a blameless controller strictly liable for all careless acts and omissions of agents and expert advisers.

The Wood Royal Commission : a case study in the slippery slope from unethical conduct to criminal acts

Over the last two and a half decades, corruption in the police service in Australia has come under increased official and public scrutiny. Numerous scandals involving police officers has caused concerned about the integrity and ethics within the Police Service. This paper examines the Wood Royal Commission, specifically looking at testimony from Trevor Haken. This paper provides insights into the nature of police corruption as well as the process or ‘slippery slope’ corrupt officers go through. This paper also contributed to the existing literature by providing knowledge into the types of corruption used by police officers in real-life situations, and deepening understanding of how corruption emerges and why. It specifically confirms the literature on slippery slope arguments about police corruption and the role of trust in building a corrupt career. The paper contributes to the existing literature by providing insights into the nature of corruption used by police officers in real-life situations, and deepens the understanding of the process of corruption. The findings also contribute to our understanding that corruption is not just an individual incident but rather a result of reoccurring incidents that are generated by the nature of work, organizational structure and society in relation to corruption.

Child Victims of Sexual Abuse: Children's Experience of the Investigative Process in the Criminal Justice System

This paper is a selected review of research on issues surrounding the investigation of intra-familial child sexual abuse for children aged eight and above, in the criminal justice system. Particular attention is paid to features of the investigative interview in relation to the child's level of understanding, ability to report and likely emotional response when the proceedings take place. Best practice by police and social care agencies involves establishing valid and reliable information from children while attending to their developmental level and emotional state. The review aims to distil principles optimising this process from both the investigative judicial perspective and the child's focus, as well as from the inter-agency perspective and information sharing. Recommendations are made for improving the interview process based on research and methods from a range of disciplines and to optimise information recording in a format easily shared between agencies. Updated and ongoing training procedures are key to successful practice with training shared across police and social work agencies. The focus of this review is informed by preliminary findings from pilot research in progress on behalf of the Metropolitan Police Child Abuse Investigation Command.

Characteristics of the Internet for Criminal Child Sexual Abuse by Online Groomers

This paper presents a number of characteristics of the Internet that makes it attractive to online groomers. Relevant Internet characteristics include disconnected personal communication, mediating technology, universality, network externalities, distribution channel, time moderator, low‐cost standard, electronic double, electronic double manipulation, information asymmetry, infinite virtual capacity, independence in time and space, cyberspace, and dynamic social network. Potential sex offenders join virtual communities, where they meet other persons who have the same interest. A virtual community provides an online meeting place where people with similar interests can communicate and find useful information. Communication between members may be via email, bulletin boards, online chat, web‐based conferencing or other computer‐based media.