SCHOLARLY PRACTICETeaching for Monash University

Expert Evidence

“Expert Evidence” addressed the role of expert witnesses, their reports and their testimony in criminal, civil and family law cases. The course examined the attitudes of the courts and tribunals to experts and the way in which the law utilises the fruits of other disciplines. The focus of the course was on the accountability of expert opinions, including disciplinary regulation of experts, and upon the effectiveness by which experts are examined and cross-examined. It scrutinised the common law and legislative rules of expert evidence and the rules of procedure that relate to the admissibility of expert evidence. It addressed issues of property in witnesses, confidentiality, privilege, ethics, payment and selection of forensic experts, as well as the growing utilisation of single experts and concurrent evidence.

In addition, the course explored the role and impact of expert evidence in a range of different forms of litigation. It assessed the difficulties attaching to medical evidence in personal injury, product liability and coronial litigation, and to epidemiology evidence and scientific evidence in criminal litigation – in particular, DNA profiling, fingerprinting, handwriting analysis, lip-reading and facial mapping. A significant portion of the course was also devoted to controversies attaching to the role of psychiatric and psychological evidence – in cases involving evaluation of fitness to stand trial, assessment of criminal intent, diminished responsibility and insanity. Issues relating to prediction of dangerousness, post-traumatic stress disorder as psychiatric injury, and the main “forensic syndromes” – battered woman syndrome, rape trauma syndrome, cult indoctrinee syndrome, repressed memory syndrome, child sexual abuse accommodation syndrome and parental alienation syndrome – were also canvassed in the context of criminal, civil and family law cases.  The subject also grappled with the admissibility and probative value of accounting and other financial evidence, as well as anthropology, historical and cultural expert evidence in the native title trial context.

The course utilised I Freckelton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (Thomson Reuters, Sydney, 4th edn, 2009, 5th edn, 2013).

Health Law and Human Rights

“Health Law and Human Rights” addressed a range of human rights that arise in the context of contemporary health law, including:

• The background in unethical conduct by the “Nazi doctors” of modern human rights law in the health context;
• Examination of Article 12 of the International Covenant on Economic, Social and Cultural Rights and in particular General Comment No 14, “The Right to the Highest Attainable Standard of Health”;
• Analysis of the role of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health;
• Scrutiny of the impact and potential impact upon health service provision of the Charter of Human Rights and Responsibilities Act 2005 (Vic);
• Scrutiny of the human rights role of modern public health law;
• Human rights and mental health law, including the role of habeas corpus;
• Examination of the human rights repercussions of the distinctions for different purposes in law, medicine and ethics between life and death;
• Analysis of the role of the living and dead body in contemporary Australia, identifying important human rights decisions in relation to the status of body parts, blood, and trafficking in potentially valuable tissues, amongst other things relevant to post-mortem reproduction;
• Identification of contemporary controversies internationally about rights to have life support turned off and food and water withheld in the context of persistent vegetative states and other like conditions;
• Review of the law in relation to euthanasia, both active and passive, comparing Australia’s Northern Territory initiative with the Medical Treatment (Physician Assisted Dying) Bill 2008 (Vic), as well as changes to physician-assisted suicide in The Netherlands, Belgium, Switzerland and Oregon;
• Review of the role of the coroner in contemporary Australia as an investigator of death, including the rights of next of kin to object to exhumations and autopsies and to assert an entitlement to the convening of inquests;
• Identification of major controversies arising from the Patel and Shipman scandals and analyses the effectiveness of the coroner as a public health official under the Coroners Act 2008 (Vic);
• Review of the complex rights of patients and medical staff in relation to wrongful birth, wrongful life and wrongful death actions;
• Examination of litigants’ health rights in relation to the provision of sound quality and adequately resourced treatment;
• Analysis of the entitlements of persons aggrieved by the quality of provision of health services under the Health Practitioner Regulation National Law (Victoria) Act 2009.

Advanced Torts

“Advanced Torts” built upon the Undergraduate Unit in Torts and explores a series of controversial contemporary issues in relation to tortious liability. It located the current tort liability system within the controversies leading up to the insurance crisis of 2001 and the Ipp Report, followed by the substantial legislative changes to tortious liability throughout Australia. It scrutinises the limited protection given to apologies under s14J of the Wrongs Act 1958 (Vic). It examined the evolving law in relation to intentional torts and defamation law. It surveyed the various conceptualisations in law of causation, the policy component of causation determination and the retreat from the “common sense” and the policy aspects of the “scope of liability” test. It evaluates the role of non-delegable duties and vicarious liability, particular;y focussing upon actions brought against health practitioners, educators  and church entities. It scrutinised issues of professional liability and economic torts. It also discussed the re-emergence of the “normal fortitude” rule in relation to psychiatric injury (mental harm) compensability. It reflects upon the operation of the doctrine of voluntary assumption of risk.

Advanced Torts also looked to the complex jurisprudence that has evolved in relation to compensability under s85B of the Sentencing Act 1991 (Vic) as an alternative to personal injury or intentional tort actions.

Civil Liability of Psychologists

This yearly suite of lectures in the D Psych programme at Monash University addressed the tortious liability of psychologists and the functioning of the workers’ compensation, Transport Accident Commission and criminal injuries compensation schemes, insofar as they involve psychologists and, in particular,  forensic psychologists.