Medical negligence, causation and 'exceptional cases' under the civil liability legislation

Under the civil liability legislation enacted in most Australian jurisdictions, factual causation will be established if, on the balance of probabilities, the claimant can prove that the defendant's negligence was 'a necessary condition of the occurrence of the [claimant's] harm'. Causation will then be satisfied by showing that the harm would not have occurred 'but for' the defendant's breach of their duty of care. However, in an exceptional or appropriate case, sub-section 2 of the legislation provides that if the 'but for' test is not met, factual causation may instead be determined in accordance with other 'established principles'. In such a case, 'the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed' on the negligent party.

Phoenix activity: Regulatory challenges and the law

Remedying the mischief of phoenix activity is of practical importance. The benefits include continued confidence in our economy, law that inspires best practice among directors, and law that is articulated in a manner such that penalties act as a sufficient deterrent and the regulatory system is able to detect offenders and bring them to account. Any further reforms must accommodate and tolerate legal phoenix activity. Phoenix activity pushes tolerance of entrepreneurial activity to its absolute limits. The wisest approach would be to front end the reforms so as to alleviate the considerable detection and enforcement burden upon regulatory bodies. There is little doubt that breach of the existing law is difficult and expensive to detect; and this is a significant burden when regulators have shrinking budgets and are rapidly losing feet on the ground. This front end approach may need to include restrictions on access to limited liability. The more limited liability is misused, the stronger the argument to limit access to limited liability. This paper proposes that such an approach is a legitimate next step for a robust and mature capitalist economy.

Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

What’s law got to do with it?: Medical negligence, causation and the use of policy

In a medical negligence context, and under the causation provisions enacted pursuant to Civil Liability Legislation in most Australian jurisdictions, the normative concept of “scope of liability” requires a consideration of whether or not and why a medical practitioner should be responsible for a patient’s harm. As such, it places a limit on the extent to which practitioners are deemed liable for a breach of the duty of care owed by them, in circumstances where a legal factual connection between that breach and the causation of a patient’s harm has already been shown. It has been said that a determination of causation requires ‘the identification and articulation of an evaluative judgement by reference to “the purposes and policy of the relevant part of the law”’: Wallace v Kam (2013) 297 ALR 383, 388. Accordingly, one of the normative factors falling within scope of liability is an examination of the content and purpose of the rule or duty of care violated – that is, its underlying policy and whether this supports an attribution of legal responsibility upon a practitioner. In this context, and with reference to recent jurisprudence, this paper considers: the policy relevant to a practitioner’s duty of care in each of the areas of diagnosis, treatment and advice; how this has been used to determine an appropriate scope of liability for the purpose of the causation inquiry in medical negligence claims; and whether such an approach is problematic for medical standards or decision-making.

NMR Investigations on Di- and Tri-Azanaphthalenes Oriented in Liquid Crystals

Proton NMR spectra of 1,3-diazanaphthalene and 1,2,4-triazanaphthalene have been investigated in the nematic phase of three liquid crystals. The spectral analysis provided direct dipole-dipole couplings which have been used to derive the molecular structure. Geometry of the phenyl ring in both the molecules deviates from the regular hexagonal structure. Signs of the order parameter of the largest magnitude are opposite in liquid crystals with positive diamagetic anisotropies.

A 1h And 13c Magnetic Resonance And Infrared Spectroscopic Study Of Coordinated 2-Aminocyclopentene-1-Dithiocarboxylic Acid And Its S-Methyl Ester

The ligating properties of 2-aminocyclopentene-1-dithiocarboxylic acid and its S-methyl esters were investigated. Complexes with Zn(II), Cd(II) and Hg(II) halides were synthesized and characterized by infrared and proton and carbon-13 NMR studies. The results are concordant with a bidentate coordination of the -CS2 group to the metal ions

Enforceable undertakings: Perceptions of organisational justice

In this thesis the use of enforceable undertakings is examined as a sanction for a breach in work, health and safety legislation through the lens of organisational justice. A framework of justice types - distributive, procedural and interactional - is developed and the perceptions of the three parties to the process - the regulator, the business entity and the worker as the affected third party - are explored. It is argued that the three parties perceive the sanction to be distributively unfair, but procedurally and interactionally just.

On the leakage resilience of secure channel establishment

Secure communication channels are typically constructed from an authenticated key exchange (AKE) protocol, which authenticates the communicating parties and establishes shared secret keys, and a secure data transmission layer, which uses the secret keys to encrypt data. We address the partial leakage of communicating parties' long-term secret keys due to various side-channel attacks, and the partial leakage of plaintext due to data compression. Both issues can negatively affect the security of channel establishment and data transmission. In this work, we advance the modelling of security for AKE protocols by considering more granular partial leakage of parties' long-term secrets. We present generic and concrete constructions of two-pass leakage-resilient key exchange protocols that are secure in the proposed security models. We also examine two techniques--heuristic separation of secrets and fixed-dictionary compression--for enabling compression while protecting high-value secrets.

There is 'hope for you yet': The female drug offender in sentencing discourse

Language and gender research has, in recent years, emphasised the importance of examining the context-specific ways in which people ‘do gender’ in different situations. In this paper, we explore how women involved in drug offences, specifically methamphetamine manufacture offences, are constructed within the language of the courts. Thirty-six sentencing transcripts from the New Zealand courts were examined to investigate how such offences, committed by women, are understood. In order to explore the representation of female offenders, a critical discourse analytic approach was adopted. Such an approach recognises that linguistic modes not only create and legitimise power inequalities but also embody a specific worldview. Three gendered discourses were identified in the sentencing texts: (i) the discourse of femininity, reinforcing the socially prescribed female role; (ii) the discourse of aberration, concerning women who breach traditional gender role expectations, and; (iii) the discourse of salvation, presenting aberrant women with an opportunity to become ‘good’ women once again. The findings illustrate the ways in which processes of gendering take place within a specific community of practice: the courtroom.

Conformation And C-N Rotational Barrier Of Dithiocarbamate Esters Nmr And Molecular-Orbital Studies

The variable temperature proton and ambient temperature carbon-13 NMR spectra of S-methyl dithiocarbamate esters have been recorded. The results of the theoretical energy calculations (CNDO/2 and EHT types) together with the experimental data have been interpreted in terms of the molecular conformations. The barrier heights for the rotation about the thioamide C—N bond are calculated using the CNDO/2 method and the results are discussed in terms of the computed charge densities and bond orders.

Regression Rate Studies in Hypergolic System

Regression ra tes of a hypergolic combination of fuel and oxidiser have been experimentally measured as a function of chamber pressure, mass flux and the percentage component of the hypergolic compound in natural rubber. The hypergolic compound used is difurfurylidene cyclohexanone (DFCH) which is hypergolic with the oxidiser red fuming nitric acid (RFNA) with ignition dela y of 60-70 ms. The data of weight loss versus time is obtained for burn times varying between 5 and 20 seconds. Two methods of correlating the data using mass flux of oxidiser and the total flux of hot gases have shown that index n of the regression law r=aGoxn or r=aGnxn-1 (x the axial distance) is about 0.5 or a little lower and not 0.8 even though the flow through the port is turbulent. It is argued that the reduction of index n is due to heterogeneous reaction between the liquid oxidiser and the hypergolic fuel component on the surface.

Biodiversity, biosecurity and integrated pest management

Breaches of biosecurity, leading to incursions by invasive species, have the potential to cause substantial economic, social and environmental losses, including drastic reduction in biodiversity. It is argued that improving biosecurity reduces risk to biodiversity, while maintaining stable ecosystems through biodiversity can be a safeguard against biosecurity breaches. The global costs of invasive alien species (IAS) have been estimated at around US$350 billion, while alien invertebrate and vertebrate pests and weeds are estimated to cost Australia at least $7 billion a year. A striking, current, example is the incursion by Myrtle Rust (Puccinia psidii) an organism which can infect all members of the Myrtaceae, the most important family in the Australian flora. Myrtle rust was first detected on a property on the central coast of New South Wales in late April 2010. Two years later the disease has been detected in numerous locations in Queensland and New South Wales ranging from commercial plant nurseries and public amenities to large areas of bushland. This particular breach of biosecurity will, inevitably, diminish biodiversity of flora and fauna over large areas of the continent. Integrated pest management (IPM), an enrichment of diversity in managing invasive and other pest species, offers the best opportunity to address problems such as these. Australia's response to increasing biosecurity risk is comprehensive and includes national networking of scientists engaged in a complex program of biosecurity research and development, including studies of IPM. This network is being enhanced by the development of international linkages.

Combustion and Thermal Decomposition of Ammonium Perchlorate-Aluminium Composite Pellets: Mechanism for Aluminium Participation

Thermal behaviour of ammonium perchlorate-aluminium composites is studied using differential thermal analysis, thermogravimetry and differential scanning calorimetry. Electrical resistivity studies throw light on the mechanism of ammonium perchlorate decomposition at different aluminium contents. The differences observed in burning behaviour by earlier authors is explained in terms of porosity and thermal conductivity of the composite.

The new binary pulsar and the observation of gravitational spin precession

The possibility of observing gravitational spin precession due to spin-orbit coupling in a binary pulsar system is considered. An analysis is presented which can aid in delineating the relevant physical effects from pulse-structure data. In this analysis, it is assumed that the pulsar radiation emanates from a cone whose axis is tilted with respect to the axis of rotation. It is found that the time-averaged pulse width and polarization sweep vary periodically with time and that this variation has a periodicity of the order of the spin-precession frequency averaged over a complete revolution. It is concluded that for an orbital period of about 180 years, it suffices to measure polarization data with an accuracy of a few parts in 100 over a period of six months to a year in order to uncover the effects of spin precession. The consistency of the analysis is checked, and the calculations are applied to a recently discovered binary pulsar.

From Francovich to Köbler and beyond : The evolution of a State liability regime for the EC

The aim of this paper is to present the evolution of the Francovich doctrine within the European legal order. The first part deals with the gradual development of the ECJ's case law on State liability in damages for breach of EC law. Starting from the seminal Francovich and Brasserie du Pêcheur, the clarification of the criteria set by the Court is attempted with reference to subsequent case law, whereas issues concerning the extent and form of the compensation owned are also mentioned. The second part concerns one of the more recent developments in the field, namely State liability for breaches of Community law attributed to national judiciary. The Court's ruling in Köbler is examined in connection with two other recent judgments, namely Commission v. Italy of 2003 and Kühne & Heitz, as an attempt of the ECJ to reframe its relationships with national supreme courts and appropriate for itself the position of the Supreme Court in the European legal order. The implications on State liability claims by the ruling in Commission v. France of 1997 constitute the theme of the third part, where it is submitted that Member States can also be held liable for disregard of Community law by private individuals within their respected territories. To this extent, Schmidberger is viewed as a manifestation of this opinion, with fundamental rights acquiring a new dimension, being invoked by the States, contra the individuals as a shield to liability claims. Finally, the third part examines the relationship between the Francovich doctrine and the principle of legal certainty and concludes that the solutions employed by the ECJ have been both predictable and acceptable by the national legal orders. Keywords: State liability, damages, Francovich, Köbler, Schmidberger