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)

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.

Misleading and deceptive conduct at an auction

An unusual factual situation recently arose for consideration by Lindsay J of the Federal Circuit Court. In Carter v Delgrove Holdings Pty Ltd [2013] FCCA 783, an application was brought by the owners of a residential property in Western Australia, the Carters, for damages for misleading or deceptive conduct under s 18 of the Australian Consumer Law (“ACL”) and for damages for breach of contract arising from an auction of their house. Delgrove Holdings Pty Ltd was a trustee of a family trust with Mr Ilahi being a director and shareholder of the company as well as a beneficiary under the family trust. It was established that Delgrove Holdings Pty Ltd engaged in the business of property acquisition for the purposes of generating rental income...

Dispute resolution across platforms : offshore gambling industry & EVE online

Contemporary online environments suffer from a regulatory gap; that is there are few options for participants between customer service departments and potentially expensive court cases in foreign jurisdictions. Whatever form of regulation ultimately fills that gap will be charged with determining whether specific behavior, within a specific environment, is fair or foul; whether it’s cheating or not. However, cheating is a term that, despite substantial academic study, remains problematic. Is anything the developer doesn’t want you to do cheating? Is it only if your actions breach the formal terms of service? What about the community norms, do they matter at all? All of these remain largely unresolved questions, due to the lack of public determination of cases in such environments, which have mostly been settled prior to legal action. In this paper, I propose a re-branding of participant activity in such environments into developer-sanctioned, advantage play, and cheating. Advantage play, ultimately, is activity within the environment in which the player is able to turn the mechanics of the environment to their advantage without breaching the rules of the environment. Such a definition, and the term itself, is based on the usage of the term within the gambling industry, in which advantage play is considered betting with the advantage in the players’ favor rather than that of the house. Through examples from both the gambling industry and the Massively Multiplayer Role-Playing Game Eve Online, I consider the problems in defining cheating, suggest how the term ‘advantage play’ may be useful in understanding participants behavior in contemporary environments, and ultimately consider the use of such terminology in dispute resolution models which may overcome this regulatory gap.

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.

Wrongful birth assessment of damages : judgment pending

Wrongful birth - assessment of damages - overview of damages issues raised in current and previous litigation - breach of duty and causation - cost of raising a child - key damages assessment issues - application of civil liability legislation.

The covenant for quiet enjoyment : a potential nuisance to lessors

Under Australian law, a tenant complaining of nuisance caused by another tenant traditionally had no recourse to the lessor unless the lessor actively participated in the nuisance. A recent Queensland Court of Appeal decision, Aussie Traveller Pty Ltd v Marklea Pty Ltd, has found that a lessor who fails to take steps to control a tenant's nuisance may be liable to other tenants for breach of the covenant of quiet enjoyment. This paper considers the recent decision in light of common law developments in Australia, England and the United States, including the American concept of constructive eviction.

Profile of women detected drink driving via Roadside Breath Testing (RBT) in Queensland, Australia, between 2000 and 2011

Background Drink driving among women is a growing problem in many motorised countries. While research has shown that male and female drink drivers differ on a number of characteristics, few studies have addressed the circumstances surrounding women’s drink driving offences specifically. Aim To add to previous research by comparing apprehension characteristics among men and women and to extend the understanding of the female drink driving problem by investigating the drink driving characteristics that are unique to women. Results The sample consisted of the 248,173 (21.5% women) drink drivers apprehended between 2000 and 2011 in Queensland, Australia. Gender comparisons showed that women were older, had lower levels of reoffending, and were more likely to be apprehended in Major Cities compared to men. Comparisons of age group and reoffending and non-reoffending among female drink drivers only revealed that higher BAC readings were more common among younger women. Moreover, a substantial minority (13.7%) of women aged 24 years or younger were apprehended with a BAC below0.05%, reflecting a breach of the zero tolerance BAC for provisional licence holders in Australia. Older women were more likely to be charged with a ‘failure to provide a test’ offence as a result of refusing to provide a breath or blood sample, indicating that drink driving is associated high levels of stigma for this group. Reoffending occurred among 16.2% of the female drink drivers and these drivers were more likely than non-reoffending drivers to record a mid to high range BAC, to be aged 30-39 or below 21years, and to be apprehended in Inner Regional or Remote locations. Conclusion Findings highlight the unique circumstances and divergent needs of female drink drivers compared to male drivers and for different groups of female drivers.

Insurer and insured

This chapter analyses the obligations insurers and insureds owe each other and the remedies which follow a breach of obligation.

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.

When leadership meets organizational change : the influence of the top management team and supervisory leaders on change appraisals, change attitudes, and adjustment to change

Despite the importance of adaption and change for firm survival, the failure rate of organizational change efforts remains alarmingly high (Beer and Nohria, 2000; Kotter, 1995). In a recent global survey of over 3,000 executives,Meaney and Pung (2008) reported that two-thirds of executives indicated that their firm had failed to successfully implement organizational changes. Similarly, academic researchers have also concluded that difficulties in implementing and managing organizational change efforts often precipitate organizational crises (Probst and Raisch, 2005). As a result, attention has been directed to identify the factors that improve the likelihood of successfully implementing organizational change efforts. While there has been practitioner-oriented discussion around the pivotal role of workplace leaders in reducing resistance to change, only a limited number of empirical studies have examined relationships between leader behavior and employee change attitudes (e.g., Bommer, Rich, and Rubin, 2005; Herold, Caldwell, and Liu, 2008; Nemanich and Keller, 2007; Oreg and Berson, 2011). However...

Remodeling of purinergic receptor-mediated Ca 2+ signaling as a consequence of EGF-induced epithelial-mesenchymal transition in breast cancer cells

Background The microenvironment plays a pivotal role in tumor cell proliferation, survival and migration. Invasive cancer cells face a new set of environmental challenges as they breach the basement membrane and colonize distant organs during the process of metastasis. Phenotypic switching, such as that which occurs during epithelial-mesenchymal transition (EMT), may be associated with a remodeling of cell surface receptors and thus altered responses to signals from the tumor microenvironment. Methodology/Principal Findings We assessed changes in intracellular Ca 2+ in cells loaded with Fluo-4 AM using a fluorometric imaging plate reader (FLIPR TETRA) and observed significant changes in the potency of ATP (EC 50 0.175 μM (-EGF) versus 1.731 μM (+EGF), P<0.05), and the nature of the ATP-induced Ca 2+ transient, corresponding with a 10-fold increase in the mesenchymal marker vimentin (P<0.05). We observed no change in the sensitivity to PAR2-mediated Ca 2+ signaling, indicating that these alterations are not simply a consequence of changes in global Ca 2+ homeostasis. To determine whether changes in ATP-mediated Ca 2+ signaling are preceded by alterations in the transcriptional profile of purinergic receptors, we analyzed the expression of a panel of P2X ionotropic and P2Y metabotropic purinergic receptors using real-time RT-PCR and found significant and specific alterations in the suite of ATP-activated purinergic receptors during EGF-induced EMT in breast cancer cells. Our studies are the first to show that P2X 5 ionotropic receptors are enriched in the mesenchymal phenotype and that silencing of P2X 5 leads to a significant reduction (25%, P<0.05) in EGF-induced vimentin protein expression. Conclusions The acquisition of a new suite of cell surface purinergic receptors is a feature of EGF-mediated EMT in MDA-MB-468 breast cancer cells. Such changes may impart advantageous phenotypic traits and represent a novel mechanism for the targeting of cancer metastasis.

Case note : Keegan v Sussan Corporation (Aust) Pty Ltd

A recent decision of the Queensland Supreme Court highlights that merely having a policy in a workplace is not sufficient in itself – the policy must be implemented and followed if an employer wishes to establish that it is not in breach of its duty of care owed to employees. In Keegan v Sussan Corporation (Aust) Pty Ltd an employee successfully sued in negligence for her psychiatric injury caused by her employer’s failure to follow its bullying and harassment policy.

Duty to the court and the administration of justice : some examples, implications and clarifications

No liberal democracy can survive without popular trust in its judicial system. The legal profession and the judiciary enjoy a level of independence and autonomy from the executive that makes them both powerful and privileged. A UNIQUE AND ORGANIC DUTY: So long as the courts are seen to fulfil their duty to guard against encroachments by the executive on the freedoms and rights of individual citizens with integrity and credibility, they maintain enough public support to retain their normative authority. But support for those with power and privilege is easily undermined. It is contingent upon trust. Lawyers who breach that trust in ways that go to the heart of the legal system ought to expect to be made examples of and to suffer severe penalties. The good news is that the sorts of breach discussed here should be neither difficult to anticipate nor to avoid – in theory. In practice, smart and honest lawyers sometimes fall foul of these duties for all sorts of understandable (if not condonable) reasons. Law does not get practised in a social or cultural vacuum. Lawyers are people, and people have weaknesses, failings and stresses...

Equity in Australian estate litigation

Equitable claims are increasingly arising in Australian estate litigation, particularly in conjunction with family provision applications. Since the leading decision in Bridgewater v Leahy, in addition to undue influence and unconscionable bargain claims, actions based on equitable estoppel, constructive and resulting trusts, breach of fiduciary duty, and breach of legislative duties that mirror equitable obligations are increasingly being brought in contemporary estate litigation. Such litigation often raises challenging issues for claimants, including evidentiary hurdles and allegations of undue delay, especially when claims are made post-mortem in relation to inter vivos dealings with property. Accordingly, solicitors need to ensure that they fully understand the nature and potential application of equitable claims in estate litigation, or face the prospect of incurring liability to clients for professional negligence. This article explores recent trends in Australian estate litigation involving equitable claims.