Recent developments : loss of chance in medical litigation : Tabet v Gett [2010] HCA 12.

Following the judgement of the High Court in Tabet v Gett [2010]HCA 12 handed down on 21 April 2010 it appears that in Australia there is now very limited scope for recovery in negligence for the loss of a chance of a better medical outcome.

Informed consent : the review of the law of negligence and the utility of reference to NHMRC guidelines

Although rarely referred to in litigation in the years that have followed the Ipp Review Report, there may well be some merit in more frequent judicial reference to the NHMRC guidelines for medical practitioners on providing information to patients 2004.

Proof of causation in informed consent cases : establishing what the plaintiff would have done

A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would have done, if fully informed of risks, is clearly evident upon a review of decisions applying the common law. Civil liability legislation in some jurisdictions now precludes assertion evidence by a plaintiff. Although this legislative change was seen as creating a significant challenge for plaintiffs seeking to discharge the onus of proof of establishing causation in such cases, recent decisions suggest a more limited practical effect. While a plaintiff’s ex post facto assertions as to what he or she would have done if fully informed of risks may now be inadmissible, objective and subjective evidence as to the surrounding facts and circumstances, in particular the plaintiff’s prior attitudes and conduct, and the assertion evidence of others remains admissible. Given the court’s reliance on both objective and subjective evidence, statistical evidence may be of increasing importance.

Financial planning and well-being

The aim of this paper is to provide a review of the theoretical and research literature on the ways in which financial planning can enhance well-being. In reviewing the literature, the paper develops a conceptual framework for thinking about the extended value of financial planning, beyond financial outcomes, by examining the process of planning in the financial domain and its relationship to life satisfaction, living an intentional life, attainment of life goals, and the development of a sense of mastery. An essential element of psychological well-being is engagement in life tasks and roles. Planning can be considered a life management strategy that enables individuals to control and structure their lives. Having meaningful goals and the plans to achieve those goals enable individuals to experience higher levels of life engagement and well-being (MacLeod et al., 2008). Recent research on well-being suggests that domain-specific behaviours contribute to domain-specific satisfactions, which in turn contribute to an individual’s overall satisfaction with life (Easterlin, 2003; 2006). Thus changes in domain satisfaction, such as financial satisfaction, are likely to effect changes in life satisfaction.

Departures from tradition : the early years learning framework for Australia

In 2009, the Commonwealth Government of Australia published the first national learning framework for use with children aged birth to five years. The framework marks a departure from tradition in that it emphasizes intentional teaching, learning as well as child development, a particular type of play-based learning, outcomes, and equity. This article analyzes aspects of the document that depart from well established approaches to early childhood education in Australia and identifies challenges for educators who are required to use the document. It concludes that ongoing and supportive professional learning opportunities must accompany the introduction and enactment of the document.

Predicting the consumption of foods low in saturated fats among people diagnosed with Type 2 diabetes and cardiovascular disease. The role of planning in the theory of planned behaviour

The present study tested the utility of an extended version of the theory of planned behaviour that included a measure of planning, in the prediction of eating foods low in saturated fats among adults diagnosed with Type 2 diabetes and/or cardiovascular disease. Participants (N = 184) completed questionnaires assessing standard theory of planned behaviour measures (attitude, subjective norm, and perceived behavioural control) and the additional volitional variable of planning in relation to eating foods low in saturated fats. Self-report consumption of foods low insaturated fats was assessed 1 month later. In partial support of the theory of planned behaviour, results indicated that attitude and subjective norm predicted intentions to eat foods low in saturated fats and intentions and perceived behavioural control predicted the consumption of foods low in saturated fats. As an additional variable, planning predicted the consumption of foods low in saturated fats directly and also mediated the intention–behaviour and perceived behavioural control–behaviour relationships, suggesting an important role for planning as a post-intentional construct determining healthy eating choices. Suggestions are offered for interventions designed to improve adherence to healthy eating recommendations for people diagnosed with these chronic conditions with a specific emphasis on the steps and activities that are required to promote a healthier lifestyle.

Mental harm, rescuers and the Civil Liability Act 2002 (NSW)

At common law, a duty of care may be owed to a claimant who suffers nervous shock or pure mental harm due to witnessing, or hearing about, physical injury caused to another due to a defendant’s negligence. “Pure mental harm” is the ‘impairment of a person’s mental condition’ that is not suffered as a consequence of any other kind of personal injury to them. However, as many accidents have the potential to create a wide circle of mental suffering to bystanders, family members or others not physically injured themselves, it has traditionally been ‘thought impolitic that everybody so affected should be able to recover damages from the tortfeasor.’ ‘To allow such extended recovery would stretch liability too far.’ Nevertheless, whilst adopting a restrictive approach to liability, the common law courts have recognised that a defendant might owe a duty in relation to the pure mental harm suffered by one who foreseeably attends an accident scene to rescue another from a situation created by the defendant’s negligence.

Vulnerability, insurance and policy: The learner driver's standard of care

In Cook v Cook the Australian High Court held that the standard of reasonable care owed by a learner driver to an instructor, conscious of the driver’s lack of experience, was lower than that owed to other passengers and road users. Recently, in Imbree v McNeilly, the High Court declined to follow this principle, concluding that the driver’s status or relationship with the claimant should no longer influence or alter the standard of care owed. The decision therefore provides an opportunity to re-examine the rationale and policy behind current jurisprudence governing the standard of care owed by learner drivers. In doing so, this article considers the principles relevant to determining the standard and Imbree’s implications for other areas of tort law and claimant v defendant relationships. It argues that Imbree was influenced by changing judicial perceptions concerning the vulnerability of driving instructors and the relevance of insurance to tortious liability.

The relative impact of work-related stress, life stress and driving environment stress on driving outcomes

Previous research has shown the association between stress and crash involvement. The impact of stress on road safety may also be mediated by behaviours including cognitive lapses, errors, and intentional traffic violations. This study aimed to provide a further understanding of the impact that stress from different sources may have upon driving behaviour and road safety. It is asserted that both stress extraneous to the driving environment and stress directly elicited by driving must be considered part of a dynamic system that may have a negative impact on driving behaviours. Two hundred and forty-seven public sector employees from Queensland, Australia, completed self-report measures examining demographics, subjective work-related stress, daily hassles, and aspects of general mental health. Additionally, the Driver Behaviour Questionnaire (DBQ) and the Driver Stress Inventory (DSI) were administered. All participants drove for work purposes regularly, however the study did not specifically focus on full-time professional drivers. Confirmatory factor analysis of the predictor variables revealed three factors: DSI negative affect; DSI risk taking; and extraneous influences (daily hassles, work-related stress, and general mental health). Moderate intercorrelations were found between each of these factors confirming the ‘spillover’ effect. That is, driver stress is reciprocally related to stress in other domains including work and domestic life. Structural equation modelling (SEM) showed that the DSI negative affect factor influenced both lapses and errors, whereas the DSI risk-taking factor was the strongest influence on violations. The SEMs also confirmed that daily hassles extraneous to the driving environment may influence DBQ lapses and violations independently. Accordingly, interventions may be developed to increase driver awareness of the dangers of excessive emotional responses to both driving events and daily hassles (e.g. driving fast to ‘blow off steam’ after an argument). They may also train more effective strategies for self-regulation of emotion and coping when encountering stressful situations on the road.

Understanding speeding in school zones in Malaysia and Australia using an extended Theory of Planned Behaviour : the potential role of mindfulness

Speeding in school zones is a problem in both Malaysia and Australia. While there are differences between the countries in terms of school zone treatments and more generally, these differences do not explain why people choose to speed in school zones. Because speeding is usually an intentional behaviour, the Theory of Planned Behaviour (TPB) has been used to understand speeding and develop interventions, however it has limitations which can be addressed by extending the model to incorporate other constructs. One promising construct is mindfulness, which can improve the explanatory value of the TPB by taking into account unintentional speeding attributable to a lack of focus on important elements of the driving environment. We explain what mindfulness is (and is not), how it can assist in providing a better understanding of speeding in school zones, and how it can contribute to the development of interventions. We then outline a program of research which has been commenced, investigating the contribution of mindfulness to an understanding of speed choice in school zones in two different settings (Australia and Malaysia) using the TPB.

Duty of care for mental harm suffered by rescuers

In Wicks v State Rail Authority NSW; Sheehan v State Rail Authority NSW [2010] HCA 22 (16 June 2010) the duty of care owed to rescuers, who were police officers, at a train derailment, was considered in conjunction with the interpretation of the Civil Liability Act (NSW) 2002.

Open content licensing of public sector information and the risk of tortious liability for Australian Governments

There has been an increasing interest by governments worldwide in the potential benefits of open access to public sector information (PSI). However, an important question remains: can a government incur tortious liability for incorrect information released online under an open content licence? This paper argues that the release of PSI online for free under an open content licence, specifically a Creative Commons licence, is within the bounds of an acceptable level of risk to government, especially where users are informed of the limitations of the data and appropriate information management policies and principles are in place to ensure accountability for data quality and accuracy.