Legal practitioners’ negligence liability for claim investigation and advice

Nigam v Harm (No 2) [2011] WASCA 221, Western Australia Court of Appeal, 18 October 2011

An innovative information gathering and data analysis platform for railway level crossing safety data

This paper describes an innovative platform that facilitates the collection of objective safety data around occurrences at railway level crossings using data sources including forward-facing video, telemetry from trains and geo-referenced asset and survey data. This platform is being developed with support by the Australian rail industry and the Cooperative Research Centre for Rail Innovation. The paper provides a description of the underlying accident causation model, the development methodology and refinement process as well as a description of the data collection platform. The paper concludes with a brief discussion of benefits this project is expected to provide the Australian rail industry.

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.

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)

Improving level crossing safety through enhanced data recording and reporting : The CRC for Rail Innovation’s Baseline Rail Level Crossing Video project

This paper describes the work being conducted in the baseline rail level crossing project, supported by the Australian rail industry and the Cooperative Research Centre for Rail Innovation. The paper discusses the limitations of near-miss data for analysis obtained using current level crossing occurrence reporting practices. The project is addressing these limitations through the development of a data collection and analysis system with an underlying level crossing accident causation model. An overview of the methodology and improved data recording process are described. The paper concludes with a brief discussion of benefits this project is expected to provide the Australian rail industry.

Molecular genetic analyses of RFLPs for PCR-amplified growth hormone gene, renal kallikrein gene and atrial natriuretic factor gene in essential hypertension

The present study examined polymorphisms of genes that might be involved in the onset of essential hypertension (HT). These included the (i) growth hormone gene (GH1), whose locus has recently been linked to elevated blood pressure (BP) in the stroke-prone SHR, although recent sib-pair analysis of a polymorphism near the human chorionic somatomammotropin gene (a member of the GH cluster) was unable to show linkage with HT; (ii) renal kallikrein gene (KLK1); and (iii) atrial natriuretic factor gene (ANF), where a primary defect in production or activity of kallikrein or ANF could cause NaCl retention and vasoconstriction. Association analyses were conducted to compare restriction fragment length polymorphisms (RFLPs) of each gene in 85 HT and 95 normotensive (NT) Caucasian subjects whose parents had a similar BP status at age ≥50 years. The frequency of the minor allele of (i) a RsaI RFLP in the promoter of GH1, amplified from leukocyte DNA by the polymerase chain reaction, was 0.15 in the HT group and 0.14 in the NT group (χ1=0.34, P=0.55); (ii) a TaqI RFLP for KLK1 was 0.035 in the HT group and 0.015 in the NT group (χ2=1.5, P=0.21); and (iii) a XhoI RFLP for ANF was 0.50 in HTs and 0.46 in NTs (χ2=0.20, P=0.65). Studies of HT pedigrees found one family in which the ANF locus and HT were not linked, owing to an obligate recombinant. The present data thus provide no evidence for involvement of the growth hormone, renal kallikrein, nor ANF gene in the causation of essential hypertension.

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.

Observation of solution-induced corneal staining with fluorescein, rose bengal and lissamine green

Ever since sodium fluorescein (‘fluorescein’ [FL]) was first used to investigate the ocular surface over a century ago, the term ‘staining’ has been taken to mean the presence of ocular surface fluorescence [1]. This term has not been necessarily taken to infer any particular mechanism of causation, and indeed, can be attributed to a variety of possible aetiologies [2]. In recent times, there has been considerable interest in a form of ocular surface fluorescence seen in association with the use of certain combinations of soft contact lenses and multipurpose solutions. The first clinical account of this phenomenon was reported by Jones et al. [3], which was followed by a more formal investigation by the same author in 2002 [4]. Jones et al described this appearance as a ‘classic solution-based toxicity reaction’. Subsequently, this appearance has come to be known as ‘solution-induced corneal staining’ or more recently by the acronym ‘SICS’ [5]. The term SICS is potentially problematic in that from a cell biology point of view, there is an inference that ‘staining’ means the entry of a dye into corneal epithelial cells. Morgan and Maldonado-Codina [2] noted there was no foundation of solid scientific literature underpinning our understanding of the true basic causative mechanisms of this phenomenon; since that time, further work has been published in this field [6] and [7] but questions still remain about the precise aetiology of this phenomenon...

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.

Molecular characterization of "Candidatus Similichlamydia latridicola" gen. nov., sp. nov. (Chlamydiales: "Candidatus Parilichlamydiaceae"), a novel Chlamydia-like epitheliocystis agent in the striped trumpeter, Latris lineata (Forster)

Histological analysis of gill samples taken from individuals of Latris lineata reared in aquaculture in Tasmania, Australia, and those sampled from the wild revealed the presence of epitheliocystis-like basophilic inclusions. Subsequent morphological, in situ hybridization, and molecular analyses were performed to confirm the presence of this disease and discovered a Chlamydia-like organism associated with this condition, and the criteria set by Fredericks and Relman's postulates were used to establish disease causation. Three distinct 16S rRNA genotypes were sequenced from 16 fish, and phylogenetic analyses of the nearly full-length 16S rRNA sequences generated for this bacterial agent indicated that they were nearly identical novel members of the order Chlamydiales. This new taxon formed a well-supported clade with "Candidatus Parilichlamydia carangidicola" from the yellowtail kingfish (Seriola lalandi). On the basis of sequence divergence over the 16S rRNA region relative to all other members of the order Chlamydiales, a new genus and species are proposed here for the Chlamydia-like bacterium from L. lineata, i.e., "Candidatus Similichlamydia latridicola" gen. nov., sp. nov.

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.

A contextual analysis of secondary home economic teachers' agency in a time of mandatory curriculum change

This qualitative research explored secondary Home Economics teachers' perceptions of their teacher agency to influence classroom, department and school level curriculum decision making. Teachers responded to curriculum change with proactive, reactive and/or passive agency. Findings indicated that teachers' perceptions of their classroom agency remained high. However, agency decreased at department and school levels. Recent changes in schools as a result of the Australian Curriculum; NAPLAN and Queensland Studies Authority have resulted in changes that have been detrimental to teacher agency. Agency was enacted differently depending on whether change was teacher initiated or mandated by authority.

A prospective study of natural recovery from cannabis use in early psychosis

Background and Objectives: Cannabis use is common in early psychosis and has been linked to adverse outcomes. However, factors that influence and maintain change in cannabis use in this population are poorly understood. An existing prospective dataset was used to predict abstinence from cannabis use over the 6 months following inpatient admission for early psychosis. Methods: Participants were 67 inpatients with early psychosis who had used cannabis in the 6 weeks prior to admission. Current diagnoses of psychotic and substance use disorders were confirmed using a clinical checklist and structured diagnostic interview. Measures of clinical, substance use and social and occupational functioning were administered at baseline and at least fortnightly over the 6-month follow up. Results: No substance use or clinical variables were associated with 6-months’ of cannabis abstinence. Only Caucasian ethnicity, living in private accommodation and receiving an income before the admission were predictive. Only private accommodation and receiving an income were significant predictors of abstinence when these variables were entered into a multivariate analysis. Conclusions: While the observed relationships do not necessarily imply causation, they suggest that more optimal substance use outcomes could be achieved by addressing the accommodation and employment needs of patients.

The nature of errors made by drivers [Austroads Publication no: AP-R378-11]

It is important that we understand the factors and conditions that shape driver behaviour – those conditions within the road transport system that contribute to driver error and the situations where driver non-compliance to road regulations is likely. This report presents the findings derived from a program of research investigating the nature of errors made by drivers, involving a literature review and an on-road study. The review indicates that, despite significant investigation, the role of different error types in road traffic crashes remains unclear, as does the role of the wider road transport system failures in driver error causation.