Stokes, Michael --- "Editorial" [2004] JlLawInfoSci 1; (2004) 15 Journal of Law, Information and Science 5
EDITORIAL
Australia is committed to the use of medical expert systems as a way of implementing evidence based medicine and reducing medical error. Paul Hynes, in his article, considers the extent of the liability of manufacturers and developers for injuries resulting from defects in the systems themselves. His analysis is limited to a consideration of the legal issues which arise under Part VA of the Trade Practices Act, the defective goods provisions, and under the Therapeutic Goods Amendment (Medical Devices) Act 2002. He concludes that it is unlikely that the defective goods provisions of the TPA will provide an effective remedy for persons harmed by defects in medical expert systems. It may allow recovery in cases in which the defect arose in the manufacture of the system, but not cases in which the defect was a design fault, which would include cases in which the information in the system was inaccurate. He argues that the provisions of the Therapeutic Goods Amendment (Medical Devices) Act 2002 provide a more effective deterrent against defective design than does Part VA of the TPA. The Therapeutic Goods Act makes it an offence to supply medical devices which do not meet essential safety principles. It allows the operation of devices to be assessed on the basis of the purpose for which and the conditions under which the devices were intended to operate. It is clearer and more certain in its application to medical expert systems than are the provisions of Part VA of the TPA.
Dr Dan Svantesson’s article considers jurisdictional issues in cyberspace, largely through the lens of the Gutnick Case.[1] Svantesson points out that the private international law rules of most states give them jurisdictional claims over any website that can be accessed in their territory and allows them to apply the law of the forum in many situations where jurisdiction is being exercised over a foreign website. He considers these rules and their interplay with the other elements of private international law, the option of the court to decline jurisdiction and rules relating to the recognition and enforcement of foreign judgments. He concludes that private international law currently takes an effects based approach, focussing on the location of the effects of an act rather than on the location where the act was performed. The problem with this approach is that persons placing content on the internet cannot not know whether or where that content will have an impact. Therefore, they cannot predict or guard against the scope of their potential liabilities.
The issue finishes with reviews of books on various topics, including digital signatures, geographic information science, the teaching of cyber law in Australia and the theory and practice of knowledge management.
Michael Stokes
Editor.
[1] Gutnick v Dow Jones [2001] VSC 305; Dow Jones v Gutnick [2002] HCA 56.