The state of the art defence : defining the Australian experience in the context of pharmaceuticals

One of the defences within Part 3-5 of the Australian Consumer Law is the state of the art, or development risk defence. This defence, although significant, has often been neglected in Australian jurisprudential analysis and has triggered at most generic academic analysis. However, with the rise of pharmaceutical and medical device litigation in Australia, it could become a vital weapon for Australian manufacturers against product liability claims. This paper will firstly review the two ways this defence could operate. It will also discuss the three types of defects which the defence could apply to. This paper aims to determine exactly when and how this defence should apply in Australia, in the context of pharmaceutical product liability claims.

An analysis of Australia's legal regime for imposing liability on manufacturers of pharmaceutical drugs

Following a trial in June 2009 where the Federal Court heard submissions regarding whether Merck Sharpe and Dohme Australia should be held liable for an increased risk of cardiovascular conditions noted in patients who had taken the anti-inflammatory drug Vioxx, a judgment was handed down against MSDA in March 2010. MSDA appealed to the Full Federal Court, where they were successful. Special leave to appeal to the High Court of Australia was rejected in May 2012. This article will examine the themes raised in the trial judgment and the appropriateness of Australia’s statutory consumer protection regime through the lens of pharmaceutical drug injuries and side effects.

An examination of the liability of a construction contract certifier who gets it wrong

Construction contracts often provide that decisions under the contract will be made by a certifier. This paper reviews the liability issues when a certifier makes a mistake. We do that in light of recent pronouncements by the High Court of Australia and the New South Wales Court of Appeal on negligence. We look at this question in the context of traditional construction contract arrangements and also consider the implications for Public Private Partnerships and the typical contract arrangements entered into to facilitate these transactions.

Honesty about adverse events - more honoured in the breach than in the observance

The medical board of Australia Code of conduct reminds doctors that" "When adverse events occur, you have a responsibility to be open and honest in your communication with your patient, to review what has occurred and to report appropriately." More honoured in the breach rather than the observence may or may not be correct. Faced with the English concerns and the Netherlands research, an evidence based assessment of compliance with the ethical duty to disclose adverse events is warranted.

The landlord's duty and unsafe premises

Case note on Sheehy v Hobbs [2012]. It is well established that a landlord owes a tenant a duty of care to “take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household”.1 What often arises is the question of how far the scope of that duty extends. In Sheehy v Hobbs [2012] QSC 333 the plaintiff was injured when she fell down a flight of internal stairs of the townhouse she leased from the defendants. The plaintiff claimed damages for a breach of duty owed to her in negligence, and also alleged breaches of the duties owed to her pursuant to s 103 of the Residential Tenancies Act 1994 (Qld) and her tenancy agreement.

Failure to administer a drug and causation

Case note on King v Western Sydney Local Health Network In King v Western Sydney Local Health Network [2013] NSWCA 162 the appellant sought damages for the severe physical and intellectual disability she suffered as a result of foetal varicella syndrome (FVS) caused by her mother contracting varicella (chickenpox) in the second trimester of her pregnancy. The mother had been exposed to the virus and sought advice from a doctor at Blacktown Hospital as she had not had the virus herself and therefore did not possess immunity. In such circumstances at the time, the standard medical practice was to offer the mother varicellazoster immunoglobulin (VZIG) to boost her defence to the virus. The appellant’s mother however was not offered this treatment and contracted chickenpox resulting the appellant’s condition...

Vulnerability held not to be pre-requisite for establishing a duty of care in claims of pure economic Loss

Case note Apache Energy Ltd v Alcoa of Australia Ltd (No 2) [2013] In 2011, headlines were made when Alcoa sued Apache Energy and its partners for $158 million, a loss it claimed was a consequence of Apache Energy failing to adequately inspect and maintain the gas pipelines that supplied the gas used by Alcoa in its business. As the loss was not a consequence of any property damage or injury to Alcoa, the loss is characterised as pure economic loss...

When two wrongs don't make it proportionate.

In Hobbs Haulage Pty Ltd v Zupps Southside Pty Ltd [2013] QSC 319 Jackson J considered the application of the concurrent liability provisions of the Civil Liability Act 2003 (Qld).

Statute bar remains firm

In Hall v Don Faulkner Motors Pty Ltd [2013] QSC 331 Mullins j considered some significant questions relating to the construction of s11 of the Limitation of Actions Act 1974 (Qld) as that provision relates to dependency claims.

Practice & procedure : gratuitous services

In Carroll v Coomber [2006] QDC 146 the plainliff was injured in a motor vehicle accident on September 7, 2003. Liability was admitted and it remained to assess the plaintiff's damages. In light of the date of the accident, the damages were to be assessed under the Civil Liability Act 2003 (the act) and the Civil Liability Regulations.

Liability in negligence and the failure to disclose multiple risks in surgery : I would have been willing to run the risk

It has been 21 years since the decision in Rogers v Whitaker and the legal principles concerning informed consent and liability for negligence are still strongly grounded in this landmark High Court decision. This paper considers more recent developments in the law concerning the failure to disclose inherent risks in medical procedures, focusing on the decision in Wallace v Kam [2013] HCA 19. In this case, the appellant underwent a surgical procedure that carried a number of risks. The surgery itself was not performed in a sub-standard way, but the surgeon failed to disclose two risks to the patient, a failure that constituted a breach of the surgeon’s duty of care in negligence. One of the undisclosed risks was considered to be less serious than the other, and this lesser risk eventuated causing injury to the appellant. The more serious risk did not eventuate, but the appellant argued that if the more serious risk had been disclosed, he would have avoided his injuries completely because he would have refused to undergo the procedure. Liability was disputed by the surgeon, with particular reference to causation principles. The High Court of Australia held that the appellant should not be compensated for harm that resulted from a risk he would have been willing to run. We examine the policy reasons underpinning the law of negligence in this specific context and consider some of the issues raised by this unusual case. We question whether some of the judicial reasoning adopted in this case, represents a significant shift in traditional causation principles.

Planes, trains, automobiles and the action per quod servitium amisit

The action per quod servitium amisit compensates an employer for the loss of an employee’s services, where such loss is caused due to the commission of a tort by a third party which injures the employee. Although not commonly pleaded, such actions often arise when employees are harmed due to transportation accidents. For example, where allowed, physical injury caused by the negligent driving of automobiles, and the psychiatric injury suffered by an engine driver upon averting a collision with a motorcyclist crossing before an oncoming train...

Civil litigation limitation periods : submission to the Royal Commission into institutional responses to child sexual abuse

This submission makes one simple yet powerful recommendation for law reform to promote justice for survivors of child sexual abuse. It is informed by extensive analyses of the phenomenon of child sexual abuse and its psychological sequelae, legislative time limits and case law across Australia and internationally, the policy reasons underpinning statutory time limits generally, and the need for fairness, certainty and practicability in the legal system. The recommendation is that legislative reform is required in all Australian States and Territories to remove time limitations for civil claims for injuries caused by child sexual abuse.