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.

Health and guardianship law : the decision of X v the Sydney Children's Hospitals Network [2013] NSWCA 320 : mature minors and the refusal of blood products

This recent decision of the New South Wales Court of Appeal considers the scope of the parens patriae jurisdiction in cases where the jurisdiction is invoked for the protection of a Gillick competent minor. As outlined below, in certain circumstances the law recognises that mature minors are able to make their own decisions concerning medical treatment. However, there have been a number of Commonwealth decisions which have addressed the issue of whether mature minors are able to refuse medical procedures in circumstances where refusal will result in the minor dying. Ultimately, this case confirms that the minor does not necessarily have a right to make autonomous decisions; the minor’s right to exercise his or her autonomous decision only exists when such decision accords with what is deemed to be in his or her best interests.

Assessment of costs : challenge to validity of client agreement between party entitled to costs and its solicitors

In ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540 the Queensland Court of Appeal dismissed an appeal from the decision of Mullins J at first instance in ASIC v Atlantic 3 Financial (Aust) Pty LTd [2006] QSC 152, the majority concluding that the client agreement in issue was not inconsistent with s48 of the Queensland Law Society Act 1952.

Practice and procedure - Motor Accident Insurance Act 1994 s45 - duty of claimant to cooperate with insurer

In Suncorp Metway Insurance Limited v Brown [2004] QCA 325 the Queensland Court of Appeal considered the extent of the duty of cooperation imposed on a claimant under s45 of the Motor Accident Insurance Act 1994 (Qld). The issue is an important one because it affects virtually all claims made under the Act.

Indemnity costs - whether indemnity costs can be ordered in Magistrates Court

In Asset Loan Management v Mamap Pty Ltd [2005] QDC 295, McGill DCJ held that costs may be recovered in Magistrates Courts on the indemnity basis. His Honour was satisfied his conclusion in this respect was not precluded by the decision of the Court of Appeal in Beardmore v Franklins Management Services Pty Ltd [2002] QCA 60

Right to trial by jury - construction of Uniform Civil Procedure r474

In Smit v Chan [2001] QSC 493 (Supreme Court of Queensland, S1233 of 1995, Mullins J, 21.12.2001) the sixth defendant successfully obtained an order that a complex medical negligence action be tried without a jury. This was the first application to be decided under r474 of UCPR 1999, and the decision is a significant precedent for defendants in similar cases who want to avoid the unpredictability of outcome and the inflated damages awards sometimes associated with jury trials.

Limitation of actions - medical negligence

In Christensen v Salter [2002] QDC 082 the District Court of Queensland considered some issues on the limitation period applying to claims arising out of a failed sterilisation procedure

Improper coaching of witnesses costs defendant its judgment

In its judgment on April 11, 2005, in Day v Perisher Blue Pty Ltd [2005] NSWCA 110, the NSW Court of Appeal overturned the decision of the District Court in favour of the defendant. The main ground for the decision of the Court of Appeal related to the conduct of the defendant's solicitors and its witnesses prior to trial. The Court subsequently referred the matter to the Legal Services Commissioner.

Limitation of Actions - effect of admission of liability

The decision in Simpson v Lenton [2002] QDC 214 applied the decisions of the Court of Appeal in Lindsay v Smith [2002] 1 Qd R 610 and Morris v FAI General Insurance Co Ltd [1996] 1 QDR 495 in finding the second defendant, having admitted liability, was estopped from relying on the expiration of the limitation period.

Limitation of Actions - incorrect date of accident advised to solicitor

The decision of the Queensland Court of Appeal in Cormie v Orchard [2003] QCA 236 involved consideration of whether the respondent solicitor was liable in negligence for failing to commence proceedings within the applicable limitation period in circumstances where the solicitor had relied on the advice as to the date of injury nominated incorrectly but unequivocally by the client.