A qualificação do lucro da intervenção:responsabilidade civil ou enriquecimento sem causa?

O presente estudo tem por objetivo demonstrar que, nas hipóteses em que alguém intervém na esfera jurídica alheia e obtém benefícios econômicos sem causar danos ao titular do direito ou, causando danos, o lucro obtido pelo ofensor é superior aos danos causados, as regras da responsabilidade civil, isoladamente, não são suficientes, à luz do ordenamento jurídico brasileiro, enquanto sanção eficaz pela violação de um interesse merecedor de tutela. Isto porque, como a principal função da responsabilidade civil é remover o dano, naquelas hipóteses, não fosse a utilização de um remédio alternativo, o interventor faria seu o lucro da intervenção, no primeiro caso integralmente e, no segundo, no valor equivalente ao saldo entre o lucro obtido e a indenização que tiver que pagar à vítima. A tese pretende demonstrar que o problema do lucro da intervenção não deve ser solucionado por intermédio das regras da responsabilidade civil, devendo, portanto, ser rejeitadas as propostas de solução neste campo, como a interpretação extensiva do parágrafo único, do artigo 944, do Código Civil, as indenizações punitivas e o chamado terceiro método de cálculo da indenização. Como alternativa, propõe-se o enquadramento dogmático do lucro da intervenção no enriquecimento sem causa, outorgando ao titular do direito uma pretensão de restituição do lucro obtido pelo ofensor em razão da indevida ingerência em seus bens ou direitos. Defende-se que a transferência do lucro da intervenção para o titular do direito tem por fundamento a ponderação dos interesses em jogo à luz da Constituição Federal, com especial atenção ao princípio da solidariedade, e da teoria da destinação jurídica dos bens. A tese procura demonstrar, ainda, que o ordenamento jurídico brasileiro não exige um efetivo empobrecimento do titular do direito para a configuração do enriquecimento sem causa e que a regra da subsidiariedade não impede a cumulação de ações, de responsabilidade civil para eliminar o dano (e no limite do dano), e de enriquecimento sem causa, para forçar a restituição do saldo positivo que permanecer no patrimônio do ofensor após o pagamento da indenização, se houver. Finalmente, a tese pretende provocar a discussão acerca da quantificação do objeto da restituição, propondo alguns critérios que deverão orientar o aplicador do direito.

The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading

In 2001 the International Law Commission finally adopted on second reading the Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries, bringing to an end nearly 50 years of ILC work on the subject. This article reviews the final group of changes to the text, focusing on the definitions of ‘injury’ and ‘damage’, assurances of non‐repetition in the light of the LaGrand case, procedural aspects of countermeasures and the controversy over measures taken in response to a breach by states which are not individually injured. The focus of debate now turns to the UNGA Sixth Committee, which will have to decide what to make of the Draft Articles. The ILC itself recommended an initial resolution taking note of the Articles, with subsequent consideration (after a period of years) of a possible diplomatic conference with a view to concluding a convention. This modest proposal allows for further reflection on the text and may help to avoid possibly divisive and inconclusive debate in the Sixth Committee. At the same time it allows time for better understanding of the many changes made as compared with the first reading text (1996).

Adjusting building thermostats for environmental gains : understanding the issues

There has been increasing reliance on mechanical heating, ventilation and air-conditioning (HVAC) systems to achieve thermal comfort in office buildings. The use of universal standards for thermal comfort adopted in air-conditioned spaces often results in a large disparity between mean daily external summer temperatures and temperatures experienced indoors. The extensive overuse of air-conditioning in warm climates not only isolates us from the vagaries of the external environment, but is generally dependent on non-renewable energy. A pilot study conducted at the Queensland University of Technology (QUT) involved altering the thermostat set-points to two or three degrees above the normal summer setting in two air-conditioned buildings during the subtropical summer. This paper presents the findings of the research that led to the formulation of the test study. The findings of the test study are printed in the companion paper DES 72: Adjusting Building Thermastats for Environmental Gains – a Pilot Study.

How collaborative technology supports cognitive processes in collaborative process modeling : a capabilities-gains-outcome model

We examine which capabilities technologies provide to support collaborative process modeling. We develop a model that explains how technology capabilities impact cognitive group processes, and how they lead to improved modeling outcomes and positive technology beliefs. We test this model through a free simulation experiment of collaborative process modelers structured around a set of modeling tasks. With our study, we provide an understanding of the process of collaborative process modeling, and detail implications for research and guidelines for the practical design of collaborative process modeling.

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.

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.

Wrongful birth assessment of damages : judgment pending

Damages issues regarding the costs of raising the child argued in a case currently before the NSW Supreme Court - Waller v James litigation pre-dated the Health Care Liability Act 2001 and the Civil Liability Act 2002.

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.

Measuring Productivity Gains from Deregulation of the Japanese Urban Gas Industry

The Japanese government initiated a series of regulatory reforms in the mid-1990s. The Japanese urban gas industry consists of various sized private and non-private firms. Numerous previous studies find that deregulation leads to productivity improvements. We extend the literature by analyzing deregulation, privatization, and other aspects of a regulated industry using unique firm level data. This study measures productivity to evaluate the effect of the deregulation reform. Using data from 205 firms from 1993 to 2004, we find that the deregulation effect differs depending on firm size. Competitive pressure contributes to advanced productivity. The deregulation of gas sales to commercial customers is the most important factor for advancing productivity. Copyright © 2013 by the IAEE. All rights reserved.

Assessment of damages in wrongful birth cases

More than ten years has passed since the High Court of Australia confirmed the recoverability of damages for the cost of raising a child in the well know decision of Cattanach v Melchior . A recent decision of the Supreme Court of New South Wales was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases.

Bone-anchored prosthesis: Evidence that “gains” overcome the “pain”

Most of socket related discomforts leading to a significant decrease in quality of life of individuals with limb amputation can be overcome by surgical techniques enabling bone-anchored prostheses. To date, the OPRA two-stage procedure (i.e., S1, S2) is the most acknowledged treatment. However, surgical implantations of osseointegrated fixations are developing at an unprecedented pace worldwide.[1-18] Clearly, this option is becoming accessible to a wide range of individuals with limb amputations. The team led by Dr Rickard Branemark has published a number of landmark articles each focusing on a particular aspect (e.g., health related quality of life, functional outcomes, bone remodelling, infection rate). [1-3, 19-32] However, evidences presented in this prospective study are remarkable. Functional outcome, health-related quality of life and complications were considered concurrently for a large population (i.e., 51 participants) over an extended period of time (i.e., up to year follow up). Therefore, the “gain” and “pain” of the whole procedure were truly contrasted for the first time. The results confirmed that OPRA surgical and rehabilitation procedures improved significantly prosthetic use, mobility, global situation and fewer problems. Furthermore, the authors reported 47 episodes of infections for 63% (32) participants between post-op S1 and two years follow up. A total of 87% (41) were superficial infections recorded for 28 participants between post-op S2 and two years follow up, while 13% (6) were deep infections occurring for 4 participants during post-op S1 and S2. As expected, post-op S2 phase was the most prone to both infections. More importantly, the vast majority of infections were effectively treated with oral antibiotics. Clearly, this study provided definitive evidence that the benefits of OPRA fixation overcome complications. This article is also establishing reporting standards and benchmark data for future studies focusing on bone-anchored prostheses.