A tutela preventiva da responsabilidade civil

The contemporary society is characterized by high risks. Today, the prevention of damages is as important as compensation. This is due to the fact that the potentiality of several damages is not in line with compensation, because often compensation proves to be impossible. Civil law should be at the service of the citizens, which explains that the heart of the institution of non-contractual liability has gradually moved towards the victim's protection. It is requested from Tort law an active attitude that seeks to avoid damages, reducing its dimension and frequency. The imputation by risk proves to be necessary and useful in the present context as it demonstrates the ability to model behaviors, functioning as a warning for agents engaged in hazardous activities. Economically, it seeks to prevent socially inefficient behaviors. Strict liability assumes notorious importance as a deterrent and in the dispersion of damage by society. The paradigm of the imputation founded on fault has proved insufficient for the effective protection of the interests of the citizens, particularly if based in an anachronistic vision of the concept of fault. Prevention arises in several areas, especially in environmental liability, producer liability and liability based on infringement of copyright and rights relating to the personality. To overcome the damage as the gauge for compensation does not inevitably mean the recognition of the punitive approach. Prevention should not be confused with reactive/punitive objectives. The deterrence of unlawful conduct is not subordinated to punishment.

Beyond Bryan: Builders' liability and pure economic loss

In Bryan v Maloney, the High Court extended a builder’s duty of care to encompass a liability in negligence for the pure economic loss sustained by a subsequent purchaser of a residential dwelling as a result of latent defects in the building’s construction. Recently, in Woolcock Street Investments Pty Ltd v CDG Pty Ltd, the Court refused to extend this liability to defects in commercial premises. The decision therefore provides an opportunity to re-examine the rationale and policy behind current jurisprudence governing builders’ liability for pure economic loss. In doing so, this article considers the principles relevant to the determination of a duty of care generally and whether the differences between purchasers of residential and commercial properties are as great as the case law suggests

The economics of credence goods: An experimental investigation of the role of verifiability, liability, competition and reputation in credence goods markets

Credence goods markets are characterized by asymmetric information between sellers and consumers that may give rise to inefficiencies, such as under- and overtreatment or market break-down. We study in a large experiment with 936 participants the determinants for efficiency in credence goods markets. While theory predicts that either liability or verifiability yields efficiency, we find that liability has a crucial, but verifiability only a minor effect. Allowing sellers to build up reputation has little influence, as predicted. Seller competition drives down prices and yields maximal trade, but does not lead to higher efficiency as long as liability is violated.

Liability of principal contractor for independent subcontractor considered by the High Court

Case note of Leighton Contractors Pty Ltd v Fox (2009) 258 ALR 673 ----- In Leighton Contractors Pty Ltd v Fox (2009) 83 ALJR 1086 ; 258 ALR 673 the High Court considered the liability of a principal contractor for the negligence of independent subcontractors on a building site. In its decision, the court considered the nature and the scope of the duty owed by principals to independent contractors.

The record producer as nexus : creative inspiration, technology and the recording industry

What is a record producer? There is a degree of mystery and uncertainty about just what goes on behind the studio door. Some producers are seen as Svengali-like figures manipulating artists into mass consumer product. Producers are sometimes seen as mere technicians whose job is simply to set up a few microphones and press the record button. Close examination of the recording process will show how far this is from a complete picture. Artists are special—they come with an inspiration, and a talent, but also with a variety of complications, and in many ways a recording studio can seem the least likely place for creative expression and for an affective performance to happen. The task of the record producer is to engage with these artists and their songs and turn these potentials into form through the technology of the recording studio. The purpose of the exercise is to disseminate this fixed form to an imagined audience—generally in the hope that this audience will prove to be real. Finding an audience is the role of the record company. A record producer must also engage with the commercial expectations of the interests that underwrite a recording. This dissertation considers three fields of interest in the recording process: the performer and the song; the technology of the recording context; and the commercial ambitions of the record company—and positions the record producer as a nexus at the interface of all three. The author reports his structured recollection of five recordings, with three different artists, that all achieved substantial commercial success. The processes are considered from the author’s perspective as the record producer, and from inception of the project to completion of the recorded work. What were the processes of engagement? Do the actions reported conform to the template of nexus? This dissertation proposes that in all recordings the function of producer/nexus is present and necessary—it exists in the interaction of the artistry and the technology. The art of record production is to engage with these artists and the songs they bring and turn these potentials into form.

Legislative proposals to codify directors' liability for insolvent trading in Hong Kong : a 10-year journey

Hong Kong is a modern global city with a reputation for well-regulated financial markets, but for years, the government had been trying to enact laws on corporate rescue procedures with relatively little success. It is under the pretext of the Global Financial Crisis, the threat of a future economic meltdown gave the Hong Kong government the impetus to revisit this issue. This third attempt to codify statutory obligations on directors’ liability for insolvent trading has been criticised for either setting the standards too high or low for directors trading whilst insolvent. There is also some reservation given the beliefs and values of directors in Chinese family-owned and controlled companies. These companies would most likely trade out the difficult times. Nevertheless, this does not negate from the fact that the enactment of corporate rescue procedures in Hong Kong in 2010 is a momentous achievement for the Hong Kong government.

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.

Standardisation and patent ambush : potential liability under Australian competition law

This article examines the problem of patent ambush in standard setting, where patent owners are sometimes able to capture industry standards in order to secure monopoly power and windfall profits. Because standardisation generally introduces high switching costs, patent ambush can impose significant costs on downstream manufacturers and consumers and drastically reduce the efficiency gains of standardisation.This article considers how Australian competition law is likely to apply to patent ambush both in the development of a standard (through misrepresenting the existence of an essential patent) and after a standard is implemented (through refusing to license an essential patented technology either at all or on reasonable and non-discriminatory (RAND) terms). This article suggests that non-disclosure of patent interests is unlikely to restrained by Part IV of the Trade Practices Act (TPA), and refusals to license are only likely to be restrained if the refusal involves leveraging or exclusive dealing. By contrast, Standard Setting Organisations (SSOs) which seek to limit this behaviour through private ordering may face considerable scrutiny under the new cartel provisions of the TPA. This article concludes that SSOs may be best advised to implement administrative measures to prevent patent hold-up, such as reviewing which patents are essential for the implementation of a standard, asking patent holders to make their licence conditions public to promote transparency, and establishing forums where patent licensees can complain about licence terms that they consider to be unreasonable or discriminatory. Additionally, the ACCC may play a role in authorising SSO policies that could otherwise breach the new cartel provisions, but which have the practical effect of promoting competition in the standards setting environment.

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.