This paper examines the contemporary challenges with the doctrine of informed consent ‘Doctrine’ and its application in the vaccination program of the Australian Government. In order to understand the challenges, we must first understand the background of the development of the Doctrine.
The Doctrine commenced with the seminal Schloendorffdecision, where it was held the need for Informed Consent is a prerequisite to the Doctor-Patient Relationship.
With Justice Cordozo stating “In the case at hand, the wrong complained of is not merely negligence. It is trespass….and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damage
This paper examines the plausibility of a legal challenge to the government’s “No Jab, No Pay” policy from an Administrative Law perspective. Unlike Constitutional Law which examines the validity of legislation according to the Constitution, Administrative law assumes the legislation is constitutionally valid and examines the decision making process of the executive; either on its merits or by judicial review.
Merits review is either conducted through internal mechanisms provided by the executive or by legislative provisions to access inferior courts such as the Administrative Appeals Tribunal ‘AAT’. Additionally, Administrative law provides for judicial review of the decision
This paper examines the legality and enforceability of the new Australian Government “No Jab, No Pay/Play” Legislation with the view of potential aspects to challenge the validity of this new law.
Starting with an examination of the legislation and its intent, the Explanatory Memorandum states "the Bill will ensure children fully meet immunisation requirements before their families can access child care benefit, child care rebate or the family tax benefit Part A supplement, [‘patient compulsion factor’]."
The Government expects the measure will result in savings of $508.3 million over five years. Exemptions will be granted only for medical reasons and Media reports sug
Section 18 of the ACL does not of itself prevent a competitor from copying the product of a rival.
A manufacturer does not contravene s 18 of the ACL merely by copying an existing product, provided that it does not represent that its product is the original. No representation of this kind will be made provided the manufacturer has adopted an adequate branding strategy to identify the product as its own. Thus, the mere copying of another’s product will not of itself mislead consumers, provided that the imitation product is sufficiently differentiated from the original through pricing, branding and branding positioning, promotional strategies and retail supply: Parkdale Custom Built Furniture
Conduct that contravenes s.18 of the Australian Consumer Law's (which prohibit misleading and deceptive conduct) may give rise to a private proceeding commenced by individual consumers who are seeking an award of damages, compensation (s.236) and refunds (s.237).
For instance you have a contract with FARM A to haul their organic tomatoes every year to market, but this year the neighboring farms pesticides affect the crop of FARM A and they lose their organic certification and therefore experience economic losses.FARM A can sue in negligence but can the truck driver?Indeterminacy of liability becomes the issue, meaning FARM B does not know what contracts FARM A has with whom and for how much for there to be a direct liability to the truck driver what is required is knowledge. Perre v Appand (1999) 198 CLR 180.If however the truck driver had put neighboring properties on notice that they had the contract with FARM A and perhaps offered their trucking
Canterbury Bankstown Council successfully defended a claim by a plaintiff pedestrian who suffered a fall as a result of a crack which formed around a Telstra pit. The plaintiff was unable to establish the risk of harm was not insignificant, and the Court also explored the protections offered to roads authorities under section 45 of the Civil Liability Act 2002 (NSW) (‘CLA’).
The key issues for determination by the Court were:
whether the defendant Council breached its duty of care to the plaintiff by failing to repair a crack in the footpath; and
even if negligence was established, did the protections offered by section 45 of the CLA apply?
On 27 February 2016,
CASE NOTEOmega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873
 NSWSC 1576, ‘Omega’
This case involved the tort of injurious falsehood with an application for an interlocutory injunction to prevent further publications pending the final hearing on the matter. The Defendants are 2GB radio and Ray Hadley their broadcaster who made a number of representations about the plaintiff’s plumbing business on his radio show and the issue is whether there was a prima facie case that those representations were made maliciously and/or with a reckless indifference to the truth or without belief in the truth of the allegations. With an absence of evidence to support the allegations made
A grandmother who has lived in Australia for 12 years is facing deportation to India after being denied a visa and told she would be a financial burden on the health system.
A 98-year-old woman who has called Australia home for the past 12 years has been threatened with deportation to India, a country where she has no one that she can call her own.
Originally from the western Indian state of Goa, Esmeralda Rosario arrived in Australia on a tourist visa in 2007. She received an indefinite bridging visa a year later after her family applied for her aged-parent visa.
But their 12-year-long wait ended in a disappointment in November 2019, when Ms Rosario’s visa application was refused on ground
News emerged this week that Victoria Police knew of Lawyer-X as early as 2005, this claim was not made by some low ranking official but none other than Victoria Police Chief, Simon Overland who claims his predesesor Christine Nixon knew in 2005.Simon Overland APM is the former Chief Executive Officer at the City of Whittlesea and a former Chief Commissioner of Victoria Police in Australia and Christine Nixon APM is an Australian former police officer who was the chief commissioner of Victoria Police from 23 April 2001 to 27 February 2009, being the first female chief commissioner in any Australian state police force.Those that have been following the scandal would remember that during the R
This tort of negligent misrepresentation is about when you go and see a professional for advice, where there is a duty of care owed to you and there is negligence when providing that advice that causes you financial loss. That would provide you a cause of action when the person makes a negligent statement or provides negligent advice which you rely upon to your financial detriment, the key is to show that a duty of care existed to prevent economic loss. Indeterminacy of liabilityIt is important to understand the principle of ‘indeterminacy of liability’ which deals with determining whether duty of care exists as a policy consideration where if it were recognised in some cases it would impo
The tort of injurious falsehood is sort of like defamation against businesses or Corporations, as you can not "defame" a Corporation and nor do they have a ready remedy in defamation if you do, it does not mean there is no common law remedey available to them against a person who does make malicious false statements against them. Most typically this tort is available when a business competitor makes false claims about the goods, services or business that is directed to the customers or would be customers of the business but this equally applied against individuals, say in online reviews or social media, where it causes damage to the business or causes customers to go elsewhere.Elements of t