Wrongful birth : assessment of damages in 2013

More than 10 years have passed since the High Court of Australia confirmed the recoverability of damages for the cost of raising a child, in the well-known decision in Cattanach v Melchior. Yet a number of aspects of the assessment of such “wrongful birth” damages had not been the subject of a comprehensive court ruling. The recent decision in Waller v James was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases. However, given a finding on causation adverse to the plaintiffs, the trial judge held that it was unnecessary to determine the quantum of damages. Justice Hislop did, however, make some comments in relation to the assessment of damages. This article focuses mostly on the argued damages issues relating to the costs of raising the child and the trial judge’s comments regarding the same. The Waller v James claim was issued before the enactment of the Health Care Liability Act 2001 (NSW) and the Civil Liability Act 2002 (NSW). Although the case was therefore decided according to the “common law”, as explained below, his Honour’s comments may be of relevance to more recent claims governed by the civil liability legislation in New South Wales, Queensland and South Australia.

Overstepping the fiduciary mark

The decision of Justice Boddice in The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban & Anor is the latest in a series of Supreme Court actions arising out of Ms Ban’s management of the affairs of her long-time elderly friend, ADF. Following on from an earlier decision in which it was determined that Ms Ban held her share of funds in a joint bank account with ADF on trust for him, this most recent case concerned a claim for an account of funds withdrawn from that account on the basis that as trustee Ms Ban owed fiduciary duties to ADF. The purpose of the accounting was to determine whether any withdrawals had been made in breach of trust, which would give rise to equitable remedies. The primary question for determination was therefore whether the withdrawals were applied for the benefit of ADF. Having regard to all the circumstances of the case, his Honour found that although some transactions were for ADF’s benefit, substantial withdrawals, (including a significant portion of a $700,000 transfer), were not applied for his benefit, and were therefore made in breach of fiduciary obligation, giving rise to equitable rights and remedies.

Pleading intention

This article considers the scope of the application of the civil liability legislation, an issue which is still being clarified by the courts, despite the passage of some ten years since the enactment of the non-uniform civil liability legislation across Australia. The introduction of the civil liability legislation has made more important the pleading of intention, in addition to negligence, so as to maximise damages awards. This involves pleading torts traditionally referred to as intentional torts – particularly trespass to the person. Such an approach is attractive for plaintiffs because, in several jurisdictions, tort claims which plead intention have been excluded from the operation of the legislative restrictions on the quantum of damages awards, and prohibitions on exemplary and aggravated damages. This approach reflects the policy that those who intend the harmful consequences of their actions should be held fully responsible.

Assisted suicide where the "assistor" is a beneficiary under the deceased's will and/or attorney under a power of attorney granted by the deceased : what are the potential consequences?

The recent criminal conviction 1 of Queensland teacher, Merin Nielsen, for aiding the suicide of an elderly acquaintance, Frank Ward, raises some timely issues, particularly for succession lawyers. This is the second time in recent years that there has been a conviction of a person who participated in a scheme

Calligraphy and causation : two obstetric management cases - Hirst v Sydney South West Area Health and King v Western Sydney local health network

Two recent decisions of the Supreme Court of New South Wales in the context of obstetric management have highlighted firstly, the importance of keeping legible, accurate and detailed medical records; and secondly, the challenges faced by those seeking to establish causation, particularly where epidemiological evidence is relied upon...

Equity in estate litigation : setting aside inter vivos transactions post mortem on the grounds of undue influence and unconscionable bargains

Where the value of an estate of a deceased person has been diminished by intervivos transfers of property, equitable doctrines provide powerful tools for practitioners advising those who are seeking to claim benefits under wills (or an intestacy) and those seeking further and better provision from the deceased estate.

Honesty about adverse event : more honoured in the breach than in the observance?

Part of the chapter: "Sale of Sperm, Health Records, Minimally Conscious States, and Duties of Candour" Although ethical obligations and good medical practice guidelines clearly contemplate open disclosure, there is a dearth of authority as to the nature and extent of a legal duty on Australian doctors to disclose adverse events to patients.

What the plaintiff would have done in informed consent cases

Both at common law and under the various civil liability acts, in deciding liability for breach of duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. For plaintiffs in medical negligence claims founded on negligent failure to provide sufficient information (informed consent cases), this onus involves persuading the court to make a favourable determination as to what a particular patient would have done (from a subjective perspective) in the hypothetical situation of the defendant not being negligent (that is, in the event that the medical practitioner had provided sufficient information to the patient)

Community college faculty's teaching social networks and their implications for librarians

Collaboration between faculty and librarians is an important topic of discussion and research among academic librarians. These partnerships between faculty and librarians are vital for enabling students to become lifelong learners through their information literacy education. This research developed an understanding of academic collaborators by analyzing a community college faculty's teaching social networks. A teaching social network, an original term generated in this study, is comprised of communications that influence faculty when they design and deliver their courses. The communication may be formal (e.g., through scholarly journals and professional development activities) and informal (e.g., through personal communication) through their network elements. Examples of the elements of a teaching social network may be department faculty, administration, librarians, professional development, and students. This research asked 'What is the nature of faculty's teaching social networks and what are the implications for librarians?' This study moves forward the existing research on collaboration, information literacy, and social network analysis. It provides both faculty and librarians with added insight into their existing and potential relationships. This research was undertaken using mixed methods. Social network analysis was the quantitative data collection methodology and the interview method was the qualitative technique. For the social network analysis data, a survey was sent to full-time faculty at Las Positas College, a community college, in California. The survey gathered the data and described the teaching social networks for faculty with respect to their teaching methods and content taught. Semi-structured interviews were conducted following the survey with a sub-set of survey respondents to understand why specific elements were included in their teaching social networks and to learn of ways for librarians to become an integral part of the teaching social networks. The majority of the faculty respondents were moderately influenced by the elements of their network except the majority of the potentials were weakly influenced by the elements in their network in their content taught. The elements with the most influence on both teaching methods and content taught were students, department faculty, professional development, and former graduate professors and coursework. The elements with the least influence on both aspects were public or academic librarians, and social media. The most popular roles for the elements were conversations about teaching, sharing ideas, tips for teaching, insights into teaching, suggestions for ways of teaching, and how to engage students. Librarians' weakly influenced faculty in their teaching methods and their content taught. The motivating factors for collaboration with librarians were that students learned how to research, students' research projects improved, faculty saved time by having librarians provide the instruction to students, and faculty built strong working relationships with librarians. The challenges of collaborating with librarians were inadequate teaching techniques used when librarians taught research orientations and lack of time. Ways librarians can be more integral in faculty's teaching social networks included: more workshops for faculty, more proactive interaction with faculty, and more one-on-one training sessions for faculty. Some of the recommendations for the librarians from this study were develop a strong rapport with faculty, librarians should build their services in information literacy from the point of view of the faculty instead of from the librarian perspective, use staff development funding to attend conferences and workshops to improve their teaching, develop more training sessions for faculty, increase marketing efforts of the librarian's instructional services, and seek grant opportunities to increase funding for the library. In addition, librarians and faculty should review the definitions of information literacy and move from a skills based interpretation to a learning process.

An androgen receptor mutation in the MDA-MB-453 cell line model of molecular apocrine breast cancer compromises receptor activity

Recent evidence indicates that the estrogen receptor-a-negative, androgen receptor (AR)- positive molecular apocrine subtype of breast cancer is driven by AR signaling. The MDA-MB-453 cell line is the prototypical model of this breast cancer subtype; its proliferation is stimulated by androgens such as 5a-dihydrotestosterone (DHT) but inhibited by the progestin medroxyprogesterone acetate (MPA) via AR-mediated mechanisms. We report here that the AR gene in MDAMB- 453 cells contains a G-T transversion in exon 7, resulting in a receptor variant with a glutamine to histidine substitution at amino acid 865 (Q865H) in the ligand binding domain. Compared with wild-type AR, the Q865H variant exhibited reduced sensitivity to DHT and MPA in transactivation assays in MDA-MB-453 and PC-3 cells but did not respond to non-androgenic ligands or receptor antagonists. Ligand binding, molecular modeling, mammalian two-hybrid and immunoblot assays revealed effects of the Q865H mutation on ligand dissociation, AR intramolecular interactions, and receptor stability. Microarray expression profiling demonstrated that DHT and MPA regulate distinct transcriptional programs in MDA-MB-453 cells. Gene Set Enrichment Analysis revealed that DHT- but not MPA-regulated genes were associated with estrogen-responsive transcriptomes from MCF-7 cells and the Wnt signaling pathway. These findings suggest that the divergent proliferative responses of MDA-MB-453 cells to DHT and MPA result from the different genetic programs elicited by these two ligands through the AR-Q865H variant. This work highlights the necessity to characterize additional models of molecular apocrine breast cancer to determine the precise role of AR signaling in this breast cancer subtype. Endocrine-Related Cancer (2012) 19 599–613

Assessment of damages for wrongful birth and consolidation in advance care directives

The recent decision of Waller v James involved a claim by the plaintiff parents for damages for wrongful birth against the defendant doctor, Dr James, a gynaecologist with a practice in infertility and IVF procedures, who had been consulted by the plaintiffs. The second plaintiff, Mr Waller suffered an inherited anti-thrombin deficiency (ATD), a condition which results in a propensity for the blood to clot, at least in adults. Dr James subsequently recommended IVF treatment. The first plaintiff, Mrs Waller became pregnant after the first cycle of IVF treatment. Her son Keeden was born on 10 August 2000 with a genetic anti-thrombin deficiency. Keeden was released from hospital on 14 August 2000. However, he was brought back to the hospital the next day with cerebral thrombosis (CSVT). As a result of the thrombosis, he suffered permanent brain damage, cerebral palsy and related disabilities. The plaintiffs alleged that the defendant was in breach of contract and his common law duty of care to the plaintiffs in failing to inform them, or cause them to be informed, of the hereditary aspects of ATD. They further alleged that, had they been properly informed, they would not have proceeded to conceive a child using the male plaintiff’s sperm and therefore avoided the harm that had befallen them. The plaintiffs claimed damages to compensate them for their losses, including psychiatric and physical injuries and the costs of having, raising and caring for Keeden. The defendant was held to be not liable in negligence by Justice Hislop of the Supreme Court of New South Wales because a finding was made on medical causation which was adverse to the plaintiffs claim.

Equity and Trusts in Principle [3rd ed.]

Equity and Trusts : in Principle, 3rd edition is updated and revised throughout. It addresses the principles of equity and trusts and provides a clear analysis of this area.

Information Literacy Research : The Evolution of the Relational Approach

This chapter introduces the reader to the relational approach to information literacy, its evolution and use in contemporary research and emerging directions. It presents the relational approach, first introduced by Australian information literacy researchers, as an integration of experiential, contextual and transformational perspectives. The chapter opens with a reflection on the wider information literacy domain. It then addresses the development of the approach, its fundamental elements and characteristics, and explores the adoption of the approach in key contexts including education, workplace and community settings. The chapter explores significant studies that have contributed to its evolution and reflects on the impact of the development of the relational framework and related research. The chapter concludes with a focus on directions emerging from the relational understanding ofinformation literacy and potential implications.

Ghost Wash

‘Ghost Wash’ unveils the past in a contemporary context. It is a blending of video projection, sound, music and performance that reconstructs the anger, the angularity, and the angst of Brisbane music from the late 70s through the 80s. The music is contained within an ongoing story about Brisbane music history.

Lexis Nexis Questions and Answers : Equity and Trusts [4th Ed.]

"LexisNexis Questions and Answers: Equity and Trusts provides students with a clear and systematic approach to successfully analysing and answering assessment questions on equity and trusts. Each chapter commences with a discussion of key principles and issues including a summary of relevant leading cases and legislation for effective revision. Examples of written questions with fact scenarios follow, each with a suggested answer plan, sample answer and comments on how the answer might be viewed by an examiner. Readers are provided with advice on common errors to avoid when answering questions and practical hints and tips on how to achieve higher marks. Features • Summary of key issues helps students revise key areas before attempting problem questions • Sample questions with model answers assist students with effective exam study preparation"--publisher website