When Basketball goes Bad

Earlier this year Pope Francis gave an address to the Italian Sports Centre.  His remarks included the observation that “[Sport] is a great school, provided that you live it with self-control and respect for others.”.  Recently the Supreme Court of Utah had to look at what this means in practice.

A basketball match at a meetinghouse of the Church of Jesus Christ of Latter Day Saints turned a bit ugly when one Judd Nixon was tackled by another player, Edward Clay.  The tackle was ruled to be an unintentional common foul, despite which Nixon suffered a serious knee injury.

action backboard ball basketball
Photo by Pixabay on Pexels.com

Nixon brought proceedings seeking damages in the Utah County District Court.  Judge Pullan granted a summary dismissal of the case on the grounds that a participant in a contact sport is liable only for the results of a wilful or reckless disregard for the safety of another player.  Mr Nixon appealed.

The Supreme Court of Utah dismissed the Appeal.  The Court adopted a simpler test which bypassed consideration of the defendant’s state of mind.  It expressed the relevant common law to be –

that voluntary participants in a sport cannot be held liable for injuries arising out of any contact that is “inherent” in the sport. Under our rule, participants in voluntary sports activities retain “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” Knight, 834 P.2d at 708. But there is no duty to lower or eliminate risks that are inherent in an activity.

In the circumstances, a grant of summary judgment was appropriate.

Interestingly, the Supreme Court of Utah was essentially the same as that reached by Australian courts in McNamara v Duncan and Smith v Emerson.

Nixon v Clay, 2019 UT 32

Unreasonableness and Regret

An interesting headline popped up in my twitter feed this morning.  The Australian had run an article which noted the possibility of litigation against doctors in cases of gender reassignment regret.

The article states that –

In Australia, troubled clinicians have urged the federal government to set up an urgent inquiry into the safety and ethics of “experimental” hormone drug treatment of girls as young as nine and boys from 11.

They say trans activism has trumped ethics and obscured the weak evidence for this radical treatment, with the dominant ­“affirmation model” pushing children down a medical path that can leave them infertile and incapable of orgasm, among other side-­effects. …

The US is seeing early signs of what ­clinicians believe will be a wave of regretful “detransitioners” across the English-speaking world.

This left me wondering what the legal options would be for a litigant.  The only caselaw on the subject of which I’m aware is Finch v Southern Health [2004] VCC 44; affirmed as Walters v Finch [2005] VSCA 203.  That case, however, dealt only with the time limit for bringing the proceeding.  I can find no decision in it post 2004; presumably the matter resolved.  In any event, since Finch’s Case the Wrongs Act 1958 has been amended to include §59, which relevantly says –

(1) A professional is not negligent … if it is established that the professional acted in a manner that (at the time …) was widely [but not necessarily universally] accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.

It occurs to me that subsection (2) may make for some interesting litigation if the ‘wave of regretful “detransitioners”‘ becomes a reality.  It is hard to be unaware of the fraught nature of public discussion surrounding transgender issues.  The danger of being caught in a social media wildfire is unacceptably high for many serious and reasonable research institutions.  If this public pressure were to result in a substantial skewing of research, a court may well be asked to determine that the relevant professional opinion is unreasonable.

Who owned the elephant?

Bart Simpson famously asked “where’s my elephant?”

He wasn’t the first.

In 1914 or 1915 Mr Maung Dwe of Burma captured an elephant and trained it to work. About six months later he sold it to Mr Maung Sin, for whom it worked until 6 June 1917 when it became lost in the jungle. The creature appears to have joined with a herd of wild elephants. In June 1918 it was recaptured by Mr Maung Shwe. He found it was able to be put to work very soon thereafter. Sin sued successfully for recovery of the elephant. The defendant appealed to the Lower Burma Chief Court.

Elephant at work - Rangoon, Burma
Elephants at work, Rangoon (c.1907) [Image from here]
Higinbotham J took his bearings from Halsbury’s Laws of England, vol.1 ¶¶798799. According to Halsbury a person can have only “qualified” property in a wild animal.  If a wild animal escapes to its former liberty, the ownership is lost.  He continued –

Elephants are animals which, though by nature wild, are peculiarly amenable to training and quickly become tame. If any such tame and trained ani­mal should go off with a wild herd of other elephants and remain at liberty so long that when recaptured, it had to be dealt with and trained as if it were a wild animal, which had never before been tamed and trained, I think it would be correct to say that it had reverted to its natural state and was in fact a wild animal.  In such case, the former owner would have lost all property to it.  But if on recapture it was found to be tame and could be put to work again almost at once, I think it would be incorrect to say that it was a wild animal.

In this case the recaptured elephant had been returned to work in a very short time and appeared trained.  It followed that it was not a wild animal when recaptured and so Sin remained the owner.

Shwe v Sin, AIR 1921 Lower Burma 1

Angry mob next 10 miles

Road hazards come in all shapes and sizes.  Sometimes they take the form of an angry mob.

On 24 December 1972 Peter Moini was a passenger in a motor vehicle owned by the government of Papua New Guinea (PNG).  The vehicle was driven by a government employee, Luke Rovin.  On the Highlands Highway near the town of Goroka, Rovin’s driving caused the vehicle to hit and kill a child nameds Linda Sapulo.  The vehicle ran off the road and turned over.  In the ensuing riot the people of the area murdered Rovin and Moini in a “payback kiling”.  Moini’s widow successfully sought damages from the government in the PNG National Court on the grounds that Rovin’s negligence had caused her husband’s death: Moini v The State [1977] PNGLR 39.  The government appealed.

Goroka (1973)
Countryside near Goroka, Papua New Guinea, in 1973 [NAA: B6295, 3511Q]
Among the grounds of appeal presented to the Supreme Court of PNG was that there was no evidence that Moini’s death was foreseeable.  The Court rejected this argument.  Prentice CJ strikingly observed that –

In many parts of Papua New Guinea the payback is becoming a thing of the past. But it is indeed a matter of notoriety that inspires dismay, that some 40 years of government administration in the Highlands, including criminal sanctions, insurance, and special provisions for automatic compensation to tribal non-dependent relatives, have not yet removed among Highlanders the instant reaction towards payback for tribal loss of blood or death. … It must be known to all driving members of the community that even in Port Moresby, as a matter of prudence, one does not stop after a motor vehicle accident … but proceeds straight to the nearest police station — in some districts even to seek sanctuary for oneself against payback, despite completely blameless behaviour.

As a result, “a reasonable man in Rovin’s position would reasonably have foreseen the killing of Moini and/or himself as the likely consequence of his killing of the child and overturning of his vehicle”.

The State v Moini [1978] PNGLR 184

What was the worker doing?

British India was always an odd blend of compassion and ruthlessness.  By the 1920s, the Raj had enacted workers’ compensation laws for the subcontinent.  It then proceeded to enforce them fairly ruthlessly.

In about 1936 Mr Maung Ba Aye was employed by the Bombay Burmah Trading Corporation as an elephant handler.  On the day in question, however, he had been asked to hand-deliver a letter between two company officials.  On his way back he was attacked by a bear, suffering fatal injuries.  The Commissioner for Workmen’s Compensation ordered that compensation be paid to the deceased’s mother.  The Company appealed to the High Court of Burma, stating that the deceased was not a worker at the relevant time.

Elephant at work - Rangoon
Elephant working in Rangoon, 1907 (Image from here)

The Workmen’s Compensation Act 1923 (Br. Ind.) relevantly defined a workman at 2(1)(n) as

… any person … who is –…

(ii) employed in any such capacity as is specified in Schedule II [which included employment”in the training, keeping or working of elephants or wild animals”] …;

Roberts CJ considered that the Act was a “quasi-penal statute” and so it should be read strictly rather than leniently.  As a result –

it is clear that at the time that the deceased was being sent out on a message to Mr. Barlow he was not employed in the task of training, keeping or working of elephants or wild animals. He was a person who was normally employed in that capacity, but was being given other duties to perform on that particular day. … [B]eing obliged to administer the Act as it stands,we are constrained to say that the deceased was not a workman within the meaning of the Act for the  pur­poses of this appeal.

A similar line of reasoning was followed by Dunkley J.  As a result the employer could not be ordered to pay compensation in relation to the death.

Bombay Burmah Trading Corp’n Ltd v Ma E Nun, AIR 1937 Rang 45

Managing stress in litigation

The most relentless buzzword in legal practice seems to be “wellness”.  Jeena Cho writes an interesting column on the subject for the ABA Journal.  Stress management is the source of quite a large number of articlesLawyers Weekly recently ran a story with guidelines on establishing resilience covering –

1. Engage with family and friends. Take the time to maintain healthy and emotionally stimulating relationships outside of work and explore ways to connect with people in meaningful ways. For example, go for a nice walk after work or eat a meal with friends or family as often as possible.
2. Get into a structured sleep habit. Aim for seven to eight hours a night and wake up at the same time every morning (even on the weekend). ….
3. Divide your day into segments. Allocate time for certain work tasks, time to move your body and time for mental breaks.
4. Find a way to be active every day. …. Just 30 minutes a day can work wonders for your brain and increase your resilience long-term.
5. When in doubt, breathe out. ….

This sounds great, although it’s impractical when your workday looks like this –

lawyer overwork

Anyway, this left me wondering what I recommend in the way of stress management based on a career which has not been uneventful.

Don’t Panic

This is a biggy.  One of the sagest bits of advice I ever received was from my friend Pam, who in turn got it from a veteran CFA Captain:

When you turn up at a bushfire,  the first thing you should do when you get out of the truck is lean on the bullbar and have a cigarette.

It makes sense, right?  The five minutes you take for a cancer-stick won’t make much of a difference and you’ll calm yourself down, appraise the situation and react to it calmly.  In the world of law this translates to: your opponent’s sent you an email refusing to agree to a vital adjournment?  Go and make a cup of tea, then come back and look at how you’ll respond to the unco-operative bastard.

You Can Fix It

It’s easy to forget, but just about every misstep in litigation can be fixed.  The only ones that can’t be repaired are missing a statute-of-limitations date or (in my jurisdiction) missing a step in the workers compensation serious injury/common law field.  Virtually every other glitch can be fixed.  It may be expensive and embarrassing but it can be fixed.

Speak Without Thinking

This one is counter-intuitive.  Let me explain.  You can never show weakness or indecision and so your first response to a challenge must be to return fire.  So, if you’re on the phone to your opponent and they’re telling you how rubbish your case is, you should have a stock set of phrases to commence any reply. First, hearing your own voice say something tends to persuade you it’s true.  Second, the brain has a remarkable ability to come up with something that will back up you initial statement.  Some of my usual phrases are –

Well, I’m afraid I don’t see it that way.

I can’t imagine a jury will agree with you.

I must say, that’s not my understanding of the law.

I don’t think that position is sound.

That’s a curious line of argument.

Well, if the defendant wants to take that position, that’s a matter for you.

If all else fails, you can finish with “It’ll be interesting to see what the Court makes of it”.

Have a Rag Bag

Litigators should have an intellectual rag bag they can rummage through for ideas.  The only way to acquire this valuable resource is utterly chaotic reading about the law.  Read decisions from random jurisdictions, like the All India Reporter – Rangoon or the Supreme Court of Latvia.  Flip through any lawyers’ magazine or law journal that crosses your path.

All India Reporter
Image from here

It’s astonishing you can use an intellectual tool you gather from them.  In no time at all you’ll feel like you can deal with any problem that the law throws your way.

Prepare a Strategy

If service with SES has taught me anything, it’s how to prepare a SMEACS briefing.  These briefings are an ideal way to organise your thoughts and plan your way to a win.  They’re incredibly helpful if you’re worried about a file and you can pick it it up and see exactly what you planned to do next.  The acronym stands for

S = Situation: What are the client’s injuries? When was the accident? What is standing in the way of them getting some money?

M = Mission: What are you trying to achieve?  Do you want to bring the matter on as a priority?  DO you want to win (one assumes so)? Do you need to extend time?

E = Execution: What precise steps need to be accomplished to get you to that point?  What medical reports are needed, and who from?  Do you need a site inspection?  Should counsel be booked?  This will usually be the longest piece of the note.

A = Administration: Are there interlocutory deadlines to be met?  Do you need to allocate particular jobs to someone else (for example, preparing a Court Book?).

C = Communications: Do you need to update your boss?  Are you dealing with your opponent’s Sydney office rather than their Melbourne office?  Do you need to include a notice under the Service and Execution of Process Act 1992 because you’re suing an interstate defendant?

S = Safety: What is going to trip you up?  Does the client need a Tigrinya interpreter for their medical examinations?  Are they volatile and inclined to pick fights with doctors?  Do you have a looming limitations date?

Preparing one of these briefings can take anything from 45 minutes to a couple of hours but (and trust me on this) it will save you a mind-boggling amount of time in the long run.

So there you have it: my two-cents worth on the subject of stress management for litigators.  What tactics do you recommend?

The trouble with being a crap gardener

In case you were wondering, committing a crime badly won’t save you from punishment.

In February 2019 a resident of Shepparton was found in possession of one mature cannabis plant, 17 small plants, a quantity of cannabis and cannabis growing material.  He was charged with drug offences.

were_the_millers_keyart
Very good movie; very bad life advice

The matter was dealt with before Stuthridge M at Shepparton Magistrates Court.  Ms Molly Wooderson appeared for the prosecution.  The defendant was represented by Ms Kate Martin of Victoria Legal Aid.  She submitted that the defendant had been seeking treatment since his arrest, was not a good gardener and had failed to care for the plants.

Her Honour sentenced the defendant to a one-year good behaviour bond without conviction.

Police v Povey (2019) Shepparton News, 2 July 2019, p.5

She wasn’t driving

Where a person sues for death benefits, can their own contributory negligence be raised against them?

Facts

Walter Meek was about to have a very bad evening.  Meek, employed as a bus driver by Guiseppe Locco, was driving on Williams Road in East St Kilda, Australia on the night of 5 June 1941.  It was never clear how he came to hit the car driven by Alfred Carstein.  There had been no rain that dayThe collision killed a 40 year old passenger in the car, Margaret Carstein, who was Alfred’s mother.

Litigation

Mrs Carstein left behind a husband and thirteen children.  Her widower, George Carstein, retained the law firm of JW Galbally (now Galbally & O’Bryan).  He sued Locco on his own behalf and on behalf of their children under Part III of the Wrongs Act 1928.  Sections 15 and 16 of the Act relevantly provided that

15. Whensoever the death of a person is caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured and although the death has been caused under such circumstances as amount in law to felony.

16. Every such action shall be for the benefit of the wife husband parent and child of the person whose death has been so caused …

These provisions live on in ss.16 and 17 of the Wrongs Act 1958.

MMTB Buses 1940
Leyland Titan buses, Melbourne, 1940 (Image from here)

Locco raised the defence that Mrs Cartein’s widower guilty of contributory negligence “by his servant or agent, Alfred Leonard Carstein”.  George Carstein applied to strike out that part of the defence.

Ruling

The application was ruled on by Gavan Duffy J.  His Honour ordered that the relevant parts of the defence be struck out.  He reasoned that in a case such as this, the issue of negligence was decided as if the deceased were herself bringing the case.  If the defendant’s negligence would have entitled the deceased to sue successfully, then the defendant would be liable.  It followed that the negligence of either George or Alfred Carstein was simply irrelevant.

Carstein v Locco [1941] ALR 330

Postscript

The matter was ultimately heard by a jury which found Meek and Locco to have been negligent.  Mr Carstein and his family were awarded damages of £2,000 (current value $161,936.21): Carstein v Locco (1941) Morwell Advertiser, 27 November 1941 at 1.

Invective from the Past

Australian readers will be well aware of the legal brouhaha surrounding the social media use of rugby player Israel Folau.  The most neutral way of putting the matter is to say that Mr Folau made comments about gay people which were considered gravely offensive and resulted in his contract as a professional athlete being terminated.  The post in question was as follows –


View this post on Instagram

Those that are living in Sin will end up in Hell unless you repent. Jesus Christ loves you and is giving you time to turn away from your sin and come to him. _______________ Now the works of the flesh are manifest, which are these , adultery, fornication, uncleanness, lasciviousness, idolatry, witchcraft, hatred, variance, emulations, wrath, strife, seditions, heresies, envyings, murders, drunkenness, revelings, and such like: of the which I tell you before, as I have also told you in time past, that they which do such things shall not inherit the kingdom of God. Galatians 5:19‭-‬21 KJV _______________ Then Peter said unto them, Repent, and be baptized every one of you in the name of Jesus Christ for the remission of sins, and ye shall receive the gift of the Holy Ghost. Acts 2:38 KJV _______________ And the times of this ignorance God winked at; but now commandeth all men every where to repent: Acts 17:30 KJV _______________

A post shared by Israel Folau (@izzyfolau) on

As it happened, about the time this particular storm was brewing, I happened to notice a case in my home jurisdiction’s law reports that was worth considering on the matter of what speech is impermissible

The Case

Robert Brickell was a pretty angry man.  He was described as a “mission worker” and on 7 April 1940 he was a man on a mission.  He had fitted a microphone and loudspeakers to his car and gave a speech in Barkly Street, Ararat, which drew quite a crowd.  He referred to the mayor’s decision to refuse permission to use the town hall for a religious meeting, and then to the mayor’s own religion. Warming to his theme he said –

The organisation responsible is that whose blighting influence has spread over most of the countries of Europe and whose slimy hands, dripping with blood unrighteously shed, is subtly but effectively grabbing control of this country, namely, the Roman Catholic Hierarchy of Authority which operates from the Vatican city, Rome, and carries on the biggest racket ever perpetrated upon mankind, blasphemously attaching the name of God and Christ to their racket.

The crowd became agitated and some people said “stop him or we will”.  Police constable Eric Annett intervened to prevent a riot.  Brickell was charged with breaching §24 of the Police Offences Act 1928, which provided –

Every person who … uses any … insulting words … in … any public place … whereby a breach of the peace is likely to be occasioned shall be liable to a penalty of not more than Ten pounds; and in default of immediate payment shall be committed to prison for a term of not more than three months unless such penalty is sooner paid.

The matter was dealt with in the Court of Petty Sessions.  Brickell was convicted and fined £2 (about $170.00 in today’s value).  He applied to have the conviction reviewed: Brickell v Annett (1940) The Argus, 9 May 1940 at 7.

Town Hall
Ararat Town Hall (Image from here)

Barrister DM Little, instructed by the firm of Nevett, Nevett & Glenn (now Nevett Ford Lawyers) sought to overturn the conviction on the basis that the words used, while offensive, were not insulting, unless there was insult to the personal feelings of the hearers.  Insulting, he said, was confined to attacks on a person’s moral character only and not (say) physical appearance.

O’Bryan J took a different view.  He considered that the word “insulting” had a wide meaning and covered scornful abuse of a person or the giving of a personal indignity or affront.

A Catholic would, I have no doubt, hearing the words in question, regard them as an abusive attack upon his personal religious beliefs and practices and would thereby suffer a personal affront. To say to a man that his religion is a sham, that it is a mere dishonest business and trickery, is to offer him a personal indignity as direct as possible.

It followed that the conviction stood.  The section in question, incidentally, lives on in §17 of the Summary Offences Act 1966.

It seems to me there are lessons for both sides in the ruling  in Annett.  On one hand, critics of what one might call public Christianity should not claim a right to say whatever invective comes into their minds –

On the other, free speech fans should remember that there has never been an open season to pick fights.

Annett v Brickell [1940] VLR 312

Worse than an alarm clock

Nobody likes hearing the alarm go off in the morning.  Except for one man, who would have preferred his alarm to the sound of police executing a search warrant at 4:20am.

warrant

The search warrant turned up a stolen motorcyle along with 28 grams of cannabis and 10 ecstasy tablets.  The subject of the search faced drug and property charges.

The matter was dealt with at Shepparton Magistrates Court before Stuthridge M.   The defendant pleaded guilty.  Ms Molly Wooderson appeared for the prosecution.  Mr Anthony Coote of Camerons Lawyers appeared for the defendant.  He submitted that the defendant, despite a criminal record, had beenoutr of trouble and was trying to re-enter the workforce.

The defendant was fined $1,500.00 without conviction.

Police v Dean (2019) Shepparton News, 2 July 2019 at 7