The Role of the Judiciary in Earth Jurisprudence : An Analysis of Judicial Approaches to Standing in Climate Change and Environmental Justice Litigation

The role of the judiciary in common law systems is to create law, interpret law and uphold the law. As such decisions by courts on matters related to ecologically sustainable development, natural resource use and management and climate change make an important contribution to earth jurisprudence. There are examples where judicial decisions further the goals of earth jurisprudence and examples where decisions go against the principles of earth jurisprudence. This presentation will explore judicial approaches to standing in Australia and America. The paper will explore two trends in each jurisdiction. Approaches by American courts to standing will be examined in reference to climate change and environmental justice litigation. While Australian approaches to standing will be examined in the context of public interest litigation and environmental criminal negligence cases. The presentation will draw some conclusions about the role of standing in each of these cases and implications of this for earth jurisprudence.

Pleading intention

This article considers the scope of the application of the civil liability legislation, an issue which is still being clarified by the courts, despite the passage of some ten years since the enactment of the non-uniform civil liability legislation across Australia. The introduction of the civil liability legislation has made more important the pleading of intention, in addition to negligence, so as to maximise damages awards. This involves pleading torts traditionally referred to as intentional torts – particularly trespass to the person. Such an approach is attractive for plaintiffs because, in several jurisdictions, tort claims which plead intention have been excluded from the operation of the legislative restrictions on the quantum of damages awards, and prohibitions on exemplary and aggravated damages. This approach reflects the policy that those who intend the harmful consequences of their actions should be held fully responsible.

Calligraphy and causation : two obstetric management cases - Hirst v Sydney South West Area Health and King v Western Sydney local health network

Two recent decisions of the Supreme Court of New South Wales in the context of obstetric management have highlighted firstly, the importance of keeping legible, accurate and detailed medical records; and secondly, the challenges faced by those seeking to establish causation, particularly where epidemiological evidence is relied upon...

Honesty about adverse event : more honoured in the breach than in the observance?

Part of the chapter: "Sale of Sperm, Health Records, Minimally Conscious States, and Duties of Candour" Although ethical obligations and good medical practice guidelines clearly contemplate open disclosure, there is a dearth of authority as to the nature and extent of a legal duty on Australian doctors to disclose adverse events to patients.

Determinants of contractor satisfaction

Performance in the construction industry is increasingly scrutinized as a result of the delays, cost overruns and poor quality of the industry’s products and services. Increasingly, disputes, conflicts and mismatches of objectives among participants are contributory factors. Performance measurement approaches have been developed to overcome these problems. However, these approaches focus primarily on objective measures to the exclusion of subjective measures, particularly those concerning contractor satisfaction (Co-S). The contractor satisfaction model (CoSMo) developed here is intended to rectify the situation. Data derived from a questionnaire survey of 75 large contractors in Malaysia in respect of a key project are analysed to identify participant factors and their strength of relationship with Co-S dimensions. The results are presented in the form of eight regression equations. The outcome is a tool for use by project participants to provide a better understanding of how they, and the project, affect contractor satisfaction. The developed model sheds some light on a hitherto unknown aspect of construction management in providing an increased awareness of the importance of major Malaysian construction contractors’ needs in the execution of successful projects.

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)

Dopamine receptor genes and migraine with and without aura : an association study

OBJECTIVE: To investigate the role of the dopamine receptor genes, DRD1, DRD3, and DRD5 in the pathogenesis of migraine. BACKGROUND: Migraine is a chronic debilitating disorder affecting approximately 12% of the white population. The disease shows strong familial aggregation and presumably has a genetic basis, but at present, the type and number of genes involved is unclear. The study of candidate genes can prove useful in the identification of genes involved in complex diseases such as migraine, especially if the contribution of the gene to phenotypic expression is minor. Genes coding for proteins involved in dopamine metabolism have been implicated in a number of neurologic conditions and may play a contributory role in migraine. Hence, genes that code for enzymes and receptors modulating dopaminergic activity are good candidates for investigation of the molecular genetic basis of migraine. METHODS: We tested 275 migraineurs and 275 age- and sex-matched individuals free of migraine. Genotypic results were determined by restriction endonuclease digestion of polymerase chain reaction products to detect DRD1 and DRD3 alleles and by Genescan analysis after polymerase chain reaction using fluorescently labelled oligonucleotide primers for the DRD5 marker. RESULTS: Results of chi-square statistical analyses indicated that the allele distribution for migraine cases compared to controls was not significantly different for any of the three tested gene markers (chi2 = 0.1, P =.74 for DRD1; chi2 = 1.8, P =.18 for DRD3; and chi2 = 20.3, P =.08 for DRD5). CONCLUSIONS: These findings offer no evidence for allelic association between the tested dopamine receptor gene polymorphisms and the more prevalent forms of migraine and, therefore, do not support a role for these genes in the pathogenesis of the disorder.

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.

Environmental sustainability of urban road transport : an integrated analysis for life cycle emission impact

Despite of significant contributions of urban road transport to global economy and society, it is one of the largest sources of local and global emission impact. In order to address the environmental concerns of urban road transport it is imperative to achieve a holistic understanding of contributory factors causing emissions which requires a complete look onto its whole life cycle. Previous studies were mainly based on segmental views which mostly studied environmental impacts of individual transport modes and very few considered impacts other than operational phase. This study develops an integrated life cycle inventory model for urban road transport emissions from a holistic modal perspective. Singapore case was used to demonstrate the model. Results show that total life cycle greenhouse gas emission from Singapore’s road transport sector is 7.8 million tons per year. The total amount of criteria air pollutants are also estimated in this study.

Efficacy of proxy definitions for identification of fatigue/sleep-related crashes : an Australian evaluation

Fatigue/sleepiness is recognised as an important contributory factor in fatal and serious injury road traffic incidents (RTIs), however, identifying fatigue/sleepiness as a causal factor remains an uncertain science. Within Australia attending police officers at a RTI report the causal factors; one option is fatigue/sleepiness. In some Australian jurisdictions police incident databases are subject to post hoc analysis using a proxy definition for fatigue/sleepiness. This secondary analysis identifies further RTIs caused by fatigue/sleepiness not initially identified by attending officers. The current study investigates the efficacy of such proxy definitions for attributing fatigue/sleepiness as a RTI causal factor. Over 1600 Australian drivers were surveyed regarding their experience and involvement in fatigue/sleep-related RTIs and near-misses during the past five years. Driving while fatigued/sleepy had been experienced by the majority of participants (66.0% of participants). Fatigue/sleep-related near misses were reported by 19.1% of participants, with 2.4% being involved in a fatigue/sleep-related RTI. Examination of the characteristics for the most recent event (either a near miss or crash) found that the largest proportion of incidents (28.0%) occurred when commuting to or from work, followed by social activities (25.1%), holiday travel (19.8%), or for work purposes (10.1%). The fatigue/sleep related RTI and near-miss experience of a representative sample of Australian drivers does not reflect the proxy definitions used for fatigue/sleepiness identification. In particular those RTIs that occur in urban areas and at slow speeds may not be identified. While important to have a strategy for identifying fatigue/sleepiness related RTIs proxy measures appear best suited to identifying specific subsets of such RTIs.

Court finds solicitor in breach of fiduciary duty owed to client but loss not caused by the breach

A solicitor owes fiduciary obligations to his or her client including the obligations of loyalty and disclosure. The Court of Appeal in Mantonella Pty Ltd v Thompson (2009) 255 ALR 367; [2009] QCA 80; BC200902311 recently considered when the fiduciary duty owed by a solicitor to a client is breached and the consequent liability of the solicitor...

Do palliative care health professionals settle for low level evidence?

The findings of the recent independent review of the UK Liverpool Care Pathway (LCP)1, following substantial concerns raised by members of the public and health professionals found that the implementation of the LCP is often associated with poor care1. The Neuberger Report highlighted the complexity of various ethical, safety, clinical practice and negligence issues associated with pathway usage and how, despite technological advances, diagnosing dying continues to be challenging. The UK Government’s decision to phase out the LCP as policy following these findings, has generated considerable debate both within and beyond the UK. However, another key issue raised by the Neuberger’s report is the issue of the palliative care community’s perceived willingness to readily adopt new clinical practices in the absence of evidence. It is this translational issue that this editorial explores.

What is an expert? A systems perspective on expertise

1. Expert knowledge continues to gain recognition as a valuable source of information in a wide range of research applications. Despite recent advances in defining expert knowledge, comparatively little attention has been given to how to view expertise as a system of interacting contributory factors, and thereby, to quantify an individual’s expertise. 2. We present a systems approach to describing expertise that accounts for many contributing factors and their interrelationships, and allows quantification of an individual’s expertise. A Bayesian network (BN) was chosen for this purpose. For the purpose of illustration, we focused on taxonomic expertise. The model structure was developed in consultation with professional taxonomists. The relative importance of the factors within the network were determined by a second set of senior taxonomists. This second set of experts (i.e. supra-experts) also provided validation of the model structure. Model performance was then assessed by applying the model to hypothetical career states in the discipline of taxonomy. Hypothetical career states were used to incorporate the greatest possible differences in career states and provide an opportunity to test the model against known inputs. 3. The resulting BN model consisted of 18 primary nodes feeding through one to three higher-order nodes before converging on the target node (Taxonomic Expert). There was strong consistency among node weights provided by the supra-experts for some nodes, but not others. The higher order nodes, “Quality of work” and “Total productivity”, had the greatest weights. Sensitivity analysis indicated that although some factors had stronger influence in the outer nodes of the network, there was relatively equal influence of the factors leading directly into the target node. Despite differences in the node weights provided by our supra-experts, there was remarkably good agreement among assessments of our hypothetical experts that accurately reflected differences we had built into them. 4. This systems approach provides a novel way of assessing the overall level of expertise of individuals, accounting for multiple contributory factors, and their interactions. Our approach is adaptable to other situations where it is desirable to understand components of expertise.

An examination of the liability of a construction contract certifier who gets it wrong

Construction contracts often provide that decisions under the contract will be made by a certifier. This paper reviews the liability issues when a certifier makes a mistake. We do that in light of recent pronouncements by the High Court of Australia and the New South Wales Court of Appeal on negligence. We look at this question in the context of traditional construction contract arrangements and also consider the implications for Public Private Partnerships and the typical contract arrangements entered into to facilitate these transactions.

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.