Corporate liability for workplace deaths and injuries-reflecting on Victoria's laws in the light of the Esso Longford explosion

The purpose of this article is to consider some different legal models for the liability of corporations for the deaths and serious injuries of their employees, with particular emphasis on the law in Victoria.

Two recent developments in Victoria prompt this consideration. First, on 30 July 2001, the Victorian Supreme Court handed down its sentencing decision in the case arising from the explosion on 25 September 1998 at the Longford gas plant operated by Esso Australia Pty Ltd. The decision marked the end of the formal public consideration of a devastating event in Victorian industrial history, which began with the Royal Commission set up on 20 October 1998 to investigate the causes of an explosion in which two workers died and eight others were injured. Second, in early 2002, the Victorian Government failed in its attempt to introduce new criminal offences for corporate employers whose employees are killed or seriously injured at work. In spite of their failure to be passed by the Legislative Council in Victoria, these proposals warrant consideration. They represent a growing trend by policy makers in attempting to address more effectively the question of the liability for deaths and serious injuries of workers to employers who operate through the corporate form.

"Sexually transmitted debts":the scope of defences to directors' liability for insolvent trading

The recent demise of prominent Australian corporations, such as GIO Australia Holdings Ltd, One.Tel Ltd, HIH Insurance Ltd and Ansett Australia Ltd, have highlighted the relevance of, inter alia, the Australian insolvent trading provisions embodied in the Corporations Act 2001 (Cth) (formerly Corporations Law). What may not be appreciated, however, is that insolvent trading is not only concerned with large public companies. Many of the insolvent trading cases that come before the courts involve small proprietary companies. Moreover, in many cases these are small “family” companies where there may only be one active director. This gives rise to a difficult issue as to the appropriateness of imposing liability for insolvent trading on a spouse who is, factually, merely a dormant director. This article explores the issue of spousal liability for insolvent trading, particularly focusing on the scope of the current defences to insolvent
trading under s 588H.

Characterisation of a synthesised fluorescent ligand (4-acridinol-1-sulphonic acid) using nuclear magnetic resonance spectroscopy

The synthesis and complete characterisation of the fluorescent ligand, 4-acridinol-1-sulphonic acid (the acridine analogue of 8-quinolinol-5-sulfonic acid) is described. Using a judicious array of nuclear magnetic resonance spectroscopy experiments, the structural elucidation and full assignment of all proton and carbon chemical shifts were afforded. The 4-acridinol-1-sulphonic acid was found to behave in a similar manner to 8-quinolinol-5-sulphonic acid, forming fluorescent complexes with magnesium(II) and zinc(II). The uncorrected emission maxima for the metal–acridinol complexes were found to be at around 620 nm compared to 505 nm for the respective quinolinol complexes. Unfortunately, preliminary spectrofluorimetric analytical figures of merit revealed that the detection limits of the new acridinol metal complexes were one and a half orders of magnitude poorer than those attained with the corresponding quinolinol ligand. However, in contrast to 8-quinolinol-5-sulphonic acid, the 4-acridinol-1-sulphonic acid ligand showed considerable selectivity for magnesium(II) and zinc(II) over aluminium(III).

Exercise increases nuclear AMPK α2 in human skeletal muscle

An acute bout of exercise increases skeletal muscle glucose uptake, improves glucose homeostasis and insulin sensitivity, and enhances muscle oxidative capacity. Recent studies have shown an association between these adaptations and the energy-sensing 5' AMP-activated protein kinase (AMPK), the activity of which is increased in response to exercise. Activation of AMPK has been associated with enhanced expression of key metabolic proteins such as GLUT-4, hexokinase II (HKII), and mitochondrial enzymes, similar to exercise. It has been hypothesized that AMPK might regulate gene and protein expression through direct interaction with the nucleus. The purpose of this study was to determine if nuclear AMPK α₂ content in human skeletal muscle was increased by exercise. Following 60 min of cycling at 72 +/- 1% of V_O2peak in six male volunteers (20.6 +/- 2.1 years; 72.9 +/- 2.1 kg; V_O2peak = 3.62 +/- 0.18 l/min), nuclear AMPK α₂ content was increased 1.9 +/- 0.4-fold (P = 0.024). There was no change in whole-cell AMPK α₂ content or AMPK α₂ mRNA abundance. These results suggest that nuclear translocation of AMPK might mediate the effects of exercise on skeletal muscle gene and protein expression.

The high court on vicarious liability

Vicarious liability (respondeat superior) is a venerable common law doctrine which holds an employer liable for the torts of employees, regardless of the fault of the employer. An employer's liability for the torts of its employees can represent a significant financial obligation and can affect both hiring and operational decisions of businesses. Vicarious liability is a prominent theme in the background of much litigation and is often the reason for litigating the issue of whether or not a worker is an employee. Vicarious liability may also arise through other relationships, such as partnership and agency. Two recent decisions by the High Court of Australia have drawn attention to the issue of vicarious liability. These decisions illuminate the High Court's view of vicarious liability's two main streams: negligence (Hollis v Vabu Pty Ltd) n2 and intentional tort (NSW v Lepore). [*2] n3

The nuclear exclusion : what does it mean and who has been tampering with it?

A nuclear exclusion appears in all general insurance policies. Since its introduction to Australia and New Zealand in the 1960s this exclusion has seen almost no change. So what are the reasons for this article? There are two reasons. First, there has been a misunderstanding on the part of some in the industry about the scope of this exclusion. This results in unnecessary alterations to the policy. The other is that a new wording is emerging some sections of the market which could be tar-reaching in its effect. The purpose of this article is to examine several aspects related to the exclusion. The first section examines the nature and extent of exposures in relation to radiation and nuclear energy and serves as background to under standing the exclusion wording. Section two provides the reasons for the inclusion of the clause and its historical origins. Section three addresses the intended scope of the current exclusion and the final section examines the scope of a new wording that is appearing and the possible implications that may result.

Studies on the mechanism of the peroxyoxalate chemiluminescence reaction Part 1. Confirmation of 1,2-dioxetanedione as an intermediate using 13C nuclear magnetic resonance spectroscopy

A simple model peroxyoxalate chemiluminescence system was monitored directly across a range of temperatures (from −80 to +20 °C) using ¹³C nuclear magnetic resonance spectroscopy. These experiments were made possible by the utilisation of ¹³C doubly labelled oxalyl chloride, which was reacted with anhydrous hydrogen peroxide in dry tetrahydrofuran. Ab initio quantum calculations were also performed to estimate the ¹³C nuclear magnetic resonance (NMR) shift of the most commonly postulated key intermediate 1,2-dioxetanedione and this data, in concert with the spectroscopic evidence, confirmed its presence during the reaction.

Introducing personal liability under the continuous disclosure regime : The essentials and non-essentials

Under the Federal Government's CLERP 9 legislation, expected at the time of writing to come into force in July 2004, personal liability will be introduced for the first time under the continuous disclosure regime. Individuals who are 'involved' in a failure to immediately disclose materially price sensitive information to the market will be subject to a civil penalty, in addition to the company being liable. According to the author, the introduction of personal liability per se is not contentious and indeed is a favourable change; what is questionable, however, is whether 'involvement' in a contravention is the appropriate test for imposing personal liability in relation to breaches of the continuous disclosure provisions. Based on the case law to date on the meaning of 'involved', there is particular uncertainty as to whether an individual would need to have actual knowledge that non-disclosed information is 'materially price sensitive' in order to satisfy the test of 'involved' in the context of continuous disclosure, or whether mere knowledge that the information has not been disclosed would be sufficient. This uncertainty arises due to the vague concept of 'essential matters' which the courts have developed as a test for what degree of knowledge a person needs to have in order to be 'involved'. The author argues that all the confusion as to what 'involved' means could be addressed by removing the word 'essential' from the dialogue, so that the test of 'involvement' would simply be based on whether the particular person had actual knowledge of each of the factual elements constituting the offence.

Holding the purse strings : the continuing evolution of human rights law and the potential liability of the finance industry for human rights abuses

While the responsibility of States and, in more recent times, corporations, has been thoroughly discussed in relation to human right~, a new stage of evolution may be emerging in relation to the liability of the financial backers of an enterprise that is accused of human rights abuses. This article considers the basis in international law for such emerging liability and examines some of the legal avenues used in recent domestic litigation against financial institutions. The article concludes by examining some of the relevant instruments of 'soft' international law and notes that although there is little in the way of concrete legislation or judicial precedent that would hold financial institutions responsible for the actions of those they invest in, the potential for the law to evolve in that direction is clear.

Directors' personal liability-is the proposed amendment to Section 197 acceptable when compared with Hanel v O'Neill?

On 2 June 2005, the Australian Government announced a proposal to amend s. 197 of the Corporations Act. This is to overturn the decision in Hanel v. O'Neill ("Hanel") where the South Australian Supreme Court has expanded the circumstances in which directors of trustee companies can be held personally liable for the debts under the current section 197(1) of the Corporations Act 2001 (Cth). The multiple interpretations presented in Hanel highlighted the uncertainty of s. 197 and this uncertainty is heightened in at least two subsequent cases. The article provides a detailed analysis of how the decision in Hanel is affecting the directors' freedom of management and suggests some precautionary measures that the directors could take as protection against creditor's actions under s. 197. The author welcomes the proposed amendment because the new section will create certainty for directors as to. the scope of their potential personal liability, but contends that the substance of the proposed s. 197 is not acceptable as there is potential for abuse by directors of certain trustee companies.

The stolen generations- Canada and Australia. The legacy of assimilation

Comparison of issues regarding the policy of Australian and Canadian governments of removing aboriginal children from their families and placing them in institutions - some Canadian claimantThis article provides a comparative overview of issues pertaining to the stolen generation in Canada and Australia. It includes a historical overview of the removal and detaining of aboriginal children in Canada and Australia. As a consequence of the revelations of this past practice, litigation has been undertaken by members of the stolen generations in both Canada and Australia. The article includes a summary of the key cases in Canada and Australia. Unlike in Australia, some Canadian aboriginal claimants have successfully brought actions for compensation against the federal Canadian government for the damages stemming from their experiences in the aboriginal residential schools. In the course of this discussion, the various causes of actions relied upon by the plaintiffs are examined While the plaintiffs in these leading Canadian cases were ultimately successful under at least one of their heads of claim, the approaches in these cases in regard to the Crown's liability for breaching fiduciary duties, the duty of care, and non-delegable duties is inconsistent. Thus even in regard to the Canadian jurisprudence key legal issues pertaining to the Crown's liability for the aboriginal residential school experience continues to be unresolved.

Monitoring a commercial fermentation with proton nuclear magnetic resonance spectroscopy with the aid of chemometrics

Proton nuclear magnetic resonance spectroscopy (NMR) has shown the potential for being a valuable tool in monitoring a commercial fermentation. In this preliminary study, a suite of organic analytes including ethanol, fructose, glucose, methanol, glycerol, malic acid, tartaric acid, succinic acid, acetic acid and lactic acid were simultaneously determined during the fermentation. Data collection and analysis using chemometric algorithms aided the understanding of key processes including the effects of seeding a wine with bacteria for malo-lactic fermentation.

Altering dietary nutrient intake that reduces glycogen content leads to phosphorylation of nuclear p38 MAP kinase in human skeletal muscle: association with IL-6 gene transcription during contraction

To determine the effect of glycogen availability and contraction on intracellular signaling and IL-6 gene transcription, eight males performed 60 min of exercise on two occasions: either with prior ingestion of a normal (Con) or low carbohydrate (LCHO) diet that reduced pre-exercise muscle glycogen content. Muscle biopsies were obtained and analyzed for IL-6 mRNA. In addition, nuclear proteins were isolated from the samples and analyzed for the mitogen- activated protein kinases (MAPK) c-jun amino-terminal kinase (JNK) 1 and 2 and p38 MAPK. Nuclear fractions were also analyzed for the phosphorylated forms of JNK (p-JNK) and p38 MAPK (p-p38 MAPK) and the abundance of the nuclear transcription factors nuclear factor of activated T cells (NFAT) and nuclear factor kappa-β (NF-κβ). No differences were observed in the protein abundance of total JNK 1/2, p38 MAPK, NFAT, or NF-κβ before exercise, but the nuclear abundance of p-p38 MAPK was higher (P<0.05) in LCHO. Contraction resulted in an increase (P<0.05) in nuclear p-JNK 1/2, but there were no differences when comparing CON with LCHO. The fold increase in IL-6 mRNA with contraction was potentiated (P<0.05) in LCHO. A correlation between pre-exercise nuclear phosphorylated p38 MAPK and contraction-induced fold increase in IL-6 mRNA was performed, revealing a highly significant correlation (r=0.96; P<0.01). We next incubated L6 myotubes in ionomycin (a compound known to induce IL-6 mRNA) with or without the pyridinylimidazole p38 MAPK inhibitor SB203580. Treatments did not affect total nuclear p38 MAPK, but ionomycin increased (P<0.05) both nuclear p-p38 MAPK and IL-6 mRNA. The addition of SB203580 to ionomycin decreased (P<0.05) nuclear p-p38 MAPK and totally abolished (P<0.05) the ionomycin- induced increase in IL-6 mRNA. These data suggest that reduced carbohydrate intake that results in low intramuscular glycogen leads to phosphorylation of p38 MAPK at the nucleus. Furthermore, phosphorylation of p38 MAPK in the nucleus appears to be an upstream target for IL-6, providing new insights into the regulation of IL-6 gene transcription.