No urge to text

Coulda.  Woulda.  Shoulda.  But didja?

Apple didn’t.

On 12 December 2008 Apple Inc. sought a patent over a smartphone lockout mechanism.  Despite having such a patent, it did not implement it in the iPhone 5.  On 30 April 2014 Ashley Kubiak was driving in Texas when her iPhone 5 received a text message.  She looked down to read it.  The distraction caused her to collide with another vehicle, killing two people and catastrophically injuring a third.  Kubiak was convicted of criminally negligent homicide and sentenced to 180 days imprisonment with five years probation: State v Kubiak, Tyler Morning Paper, 12 August 2014 (4th Texas Jud’l Ct, 2014).

Grim Reaper phone
Image from here

The accident victims and their representatives sued Apple, alleging that it had negligently failed to design the lockout device into the iPhone.  Specifically they argued that receiving a text message causes “an unconscious and automatic, neurobiological compulsion to engage in texting behavior.”  Apple successfully applied to dismiss the claim: Meador v Apple Inc (US Dist. Ct., Schroeder J, 17 August 2017, unreported).  The plaintiffs appealed.

The US 5th Circuit Court of Appeals dismissed the appeal.  The Court noted that it was to apply the law of the forum state as well as that court be determined, without adopting any novel approaches to the law.  In this case the key issue was whether the lack of a lockout device had caused the accident.  That is, would common, practical experience consider it to be a substantial factor.  The Court noted that

No Texas case has addressed whether a smartphone manufacturer should be liable for a user’s torts because the neurobiological response induced by the phone is a substantial factor in her tortious acts. To our knowledge … no court in the country has yet held that, and numerous courts have declined to do so. As such, no authority indicates to us that Texas courts, contemplating reasonable persons and ordinary minds, would recognize a person’s induced responses to her phone as a substantial factor in her tortious acts and therefore hold the phone’s manufacturer responsible.

As a result, for the Court to find that Texas law would view a smartphone’s effect on a user as a substantial factor in that person’s wrong would be an impermissible innovation of state law.

Meador v Apple Inc., 911 F.3d 260 (5th Cir. 2018)

Did anyone subpoena Bob the Builder?

Watching Bob the Builder is not an adequate substitute for having a construction industry White Card.

On the weekend of 13-14 September 2014, 16 year old Alex Hayes entered a construction site in Kentucky with some friends.  They consumed whiskey and marijuana.  A little after 1am they began to leave.  Alex climbed onto a piece of equipment, started it and began to drive it up a floodwall.  The machine tipped over and caused severe injuries to his right leg.  Hayes’ parents sought compensation on his behalf from the the property developer and its construction contractor.

bob-the-builder-mini-playsets-assorted
This is not a training resource (Image from here)

It was common ground that Alex was trespassing at the time of the accident.

Kentucky statute law provides that [KY Rev Stat § 381.232 (2013)] –

The owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner.

The rigour of this provision is moderated by Kentucky’s doctrine of “attractive nuisance”.  This doctrine says that a landowner is liable for harm to children trespassing on land, if that harm is caused by an artificial condition on the land and if –

  1. The place is one where the possessor knows children are likely to trespass;
  2. The possessor knows of the condition and should realize it poses an unreasonable risk of death or injury to such children;
  3. The children, because of their youth, do not appreciate the danger;
  4. The value of the condition for the possessor and the cost of eliminating the risk are slight relative to the risk to the children; and
  5. The possessor fails to exercise reasonable care to eliminate the danger or protect the children.

The defendants sought summary dismissal of the claims which was granted: Hayes v DCI Properties – D KY LLC (Campbell Circuit Court, Judge Stine, 22 July 2016, unreported).  The plaintiffs appeal was dismissed: Hayes v DCI Properties – D KY LLC (Kentucky Court of Appeals, Combs, Lambert and Nickell JJ, 16 June 2017, unreported). The plaintiffs appealed to the Supreme Court of Kentucky.

The Supreme Court dismissed the appeal.  It was noted that Alex was licensed to drive a car, that he was an average high school student, and that earlier in the evening he had taken steps to prevent one of his friends injuring himself on a machine.

Although we no longer adhere to a strict age cutoff, e.g., children under fourteen years of age, a child must be unable to appreciate the risk involved in intermeddling with the condition. The evidence in this case clearly demonstrates that Alex not only was capable of appreciating but also in fact did appreciate the risk of operating a piece of heavy machinery.

As a result, Alex was not entitled to rely on the attractive nuisance doctrine.

Hayes and Hayes v DCI Properties LLC, __ S.W.3d __ (KY, 13 December 2018)

When natural medicine goes bad…

By and large, people have a right to choose what healthcare they and their family receive.  Some people opt for non-standard forms of medicine.  As early as the 1870s some westerners were prepared to go on record regarding the efficacity of Chinese cures (see Ex Parte Yee Quock Ping (1875) 1 VLR 112).  Where naturopathy is concerned, I can’t imagine my thoroughly practical friend – and Naturopath-in-Training – Madison ever recommending something  anything she thought would be useless or (worse) harmful.  Nevertheless, sometimes the process goes astray.

In early 2015 a baby in New South Wales was diagnosed with eczema.  His mother was advised by a medical practitioner that the condition could be managed but not cured.  She consulted a naturopath, who told her that it could in fact be cured.  The child was being breast fed and (so the reasoning ran) his eczema could be caused by the mothers diet and toxins in her body.  She recommended the mother take up a raw food diet.  Over the next month both mother and child lost significant weight.  Despite not seeing the child, the naturopath assured the mother that this was normal and that her baby was fat and needed to lose weight.  Astonishingly, in mid-May 2015 the naturopath advised the mother to fast and adopt a water-only diet.

A few weeks later the child’s mother took him to a General Practitioner.  He was referred to a hospital where he was found to be in a critical condition.  It was concluded that he would have died within days without medical care.  His weight had dropped from 8 kilograms to 6.4 kilograms (17.6lbs to 14.08lbs).  It was uncertain whether he would suffer permanent developmental delays due to the experience.

The child’s mother was charged with failing to care for a child.  The Crimes Act 1900 (NSW), §43A(2) provides that

A person:

(a) who has parental responsibility for a child, and

(b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life,

is guilty of an offence if the failure causes a danger of death or of serious injury to the child.

Maximum penalty: Imprisonment for 5 years.

The naturopath was charged with aiding, abetting, counselling or procuring the mother’s crime.  She pleaded guilty.  The District Court accepted that she was remorseful and she had meant well.  However, Berman DCJ pointed out that –

 

Well intentioned but seriously misguided advice is, as the facts of this case demonstrate, capable of causing great harm and even death to vulnerable children. Those giving such advice need to have it made clear to them that if they give such advice they need to make sure that it is not going to do harm and if they continue to give such advice they need to continue to ensure that no harm is being caused.

It is a serious matter, but not necessarily a crime, to tell a breast feeding mother to restrict her diet. It is even more serious when such advice continues after being told that both the mother and child have lost weight. And it is serious indeed and highly criminal for such advice to continue to the state where a child was at risk of death within a few days, in circumstances where the person giving the advice hadn’t even seen the state the child was in as a result of his or her advice being followed.

 

The naturopath was sentenced to be imprisoned for 14 months, to serve a minimum of 7 months.

R v Bodnar [2018] NSWDC 76

 

What did you see (or not)?

It’s amazing how much you can get wrong without legally causing injury. Especially if you’re a railway.

On 3 November 2011 a keen runner in Northfield Falls, Vermont, USA, was driving around mapping out running routes. He drove down Slaughterhouse Road with the windows of his truck up and the music playing.  Slaughterhouse Road crosses a railway line.  As the driver crossed that rail line he was struck by a loaded freight train, suffering severe injuries.  He sued the railway operator alleging, inter alia, that it had failed to provide adequate lines of sight for motorists to see oncoming trains and to install adequate warning devices.

Ziniti Accident
Accident scene (Image: Barre-Montpelier Times Argus)

At trial a jury in the Chittenden Superior Court found that there had been no negligence by the railway. The plaintiff appealed on a number of grounds. The two most interesting were that –

  1. The trial court erred by preventing him arguing that the defendant was liable based on the absence of a “crossbuck” sign on the right hand side of the road and of an ‘advance warning’ sign.
  2. The court erred by refusing to direct a verdict finding liability as a matter of law due to breach of a safety statute.
Crossbuck
Crossbuck Sign (image from here)

The Supreme Court of Vermont dismissed the appeal.  On the first point it found that no reasonable jury could have found that the absence of a crossbuck sign on the right caused or contributed to the collision.  That is, such a sign would not have given approaching motorists any warning greater than that already provided by the crossbuck sign on the left.  The Court pointed out that –

Although causation is normally left for the jury to determine, “it may be decided as a matter of law where the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way.” 

For much the same reason the Court also concluded that the trial court had been right to reject the argument relating to the advance warning sign.

Slaughterhouse
Accident scene from driver’s view (Image: Google)

On the second point, it was assumed that the plaintiff was correct in his assertion that the railway had breached Vermont statute 5 VSA §3673 which at the relevant time stated

A person or corporation operating a railroad in this State shall cause all trees, shrubs, and bushes to be destroyed at reasonable times within the surveyed boundaries of their lands, for a distance of 80 rods [about a quarter-mile] in each direction from all public grade crossings.

The plaintiff had sought (and the trial court refused to grant) a directed verdict as to “the vegetation violation of the Vermont statute”.  The Supreme Court agreed with the trial court.  It noted that even when a safety code breach is established, evidence that a defendant had acted as a reasonably prudent person would rebut the presumption of negligence arising from the breach. It was open to the jury to find that the railway had acted with reasonable care.  Furthermore, even if negligence had been made out, the plaintiff still needed to establish causation which he had failed to do.

Ziniti v New England Central Railroad Inc, 2019 VT 9

A case I regret

I long ago lost track of the number of cases I’ve handled or been otherwise involved in.  Some stick in your mind for one reason or another.  The facts may have been unusual, or the outcome particularly good.  One has stayed with me because I regret it despite getting a good outcome.

I had a brief and inglorious career as a defence lawyer in the workers’ compensation system.  A large part of my work involved opposing claims for weekly payments and medical expenses by injured workers.  In the case I am thinking of, the plaintiff was a fellow who was in his late 20s at the time of the hearing.  He had broken one ankle in a work accident and been on payments for some years.  The ankle had lead to other problems due to the change in his gait, and so he had progressed from an ankle fusion to multiple other fusions of the bones in his foot.  I can’t remember now, but I expect he would have been developing problems in his knee, hip and back for the same reason.

The workers’ compensation insurer (my client) had stopped his weekly payments on the basis that he could return to some form of work.  I found that implausible: he had left school early and had shown no aptitude for retraining.  It was difficult to see him in any line of work that didn’t involve having a sound body.  Moreover, his accident had involved no negligence and so he could not sue for common law damages.  Weekly payments would be his only form of recompense.

Despite all of this, my client’s instructions were clear: we could negotiate a further limited period of payments, failing which he would have to run his case.  So, off I went to court on the hearing day.  I expect we made some trifling offer to begin with.  Eventually we offered the limit of our instructions.  Now, I was secretly hoping his lawyers would tell us to get knotted.  If they’d run the case, I had no doubt we would have lost, have lost badly, and would have deserved to lose badly.  To my amazement, however, our offer was accepted and the case settled.

I’ve always regretted this outcome.  Yes, I know the justifications: I was there to carry out my client’s instructions.  He was represented by an experienced barrister and competent solicitors. And it was the plaintiff’s case to fight or compromise.  I don’t find any of those terribly satisfactory.  No matter how you gloss it over, there’s no honour in ripping off an injured worker.

He wasn’t called “Jerry”

In October 2015 Mr Chameoeun (“Jimmy”) Soun was hired to undertake $7,000.00 worth of work at a property in Cranbourne, Victoria. He did not provide the property owner with a formal contract and took a deposit of greater than 10%. Later that year he was also hired to build a laundry (which he did without obtaining a building permit) and a carport valued at $6,000.00 for which he again did not enter a contract. He was not a registered builder.

building meme
Image from here

Mr Soun was charged with a number of breaches of the Domestic Building Contracts Act 1995 and the Building Act 1993, including §29 of the former, which at the time provided that

A builder must not enter into a major domestic building contract unless … the builder is registered as a builder under the Building Act 1993, in the case of a natural person … Penalty:100 penalty units.

A ‘major domestic building contract’ was defined as one where the contract price exceeded $5,000.00 (subsequently raised to $10,000.00).

Mr Nuon opted neither to appear nor be represented at the hearing of the charges. In his absence the Dandenong Magistrates Court convicted him and imposed a fine of $5,000.00 plus costs.

Victorian Building Authority v Nuon (2019) Cranbourne Star-News, 7 February 2019, p.3

Sharpening with water

I’m writing this on the tram from work.  I left the office at 7:10pm and I’m letting go of the guilt.

It’s a warm day here – 40° just now – and so I’m getting the tram to St Kilda for a swim while there’s light.
I felt a pang of guilt before I left the office. My brain kept saying –

I could work till 10pm. I could get a lot done in those 3 hours.  I could draw a long-outstanding Statement of Claim, for instance, or wade through a particularly intractable set of medical records.

Yes, I could have.  But I did this for much of my earlier career and I know where it ends.  It ends with evenings where you really just sit in your office browsing Twitter or playing YouTube videos and getting less productive and more demoralised.
So one evening off won’t matter.  I had one yesterday because I was knackered after yesterday’s County Court matter.  I went for a great run at St Kilda and came in today feeling like a new man.

There’ll be plenty of late nights this year.  I have a lot of files and no shortage of deadlines.  But I do think it helps to remember that late hours are the scythes of legal practice.  Use them shrewdly and effectively and you’ll cut swathes through your work.  Overuse the and all you’ll do is blunt their edge.

And here I am at the Esplanade. See you at work tomorrow!

Bullying in the Workplace

I’m starting this post in my office with a file in front of me and a cup of tea brewing.  The file is one of those that I get passionate about within five minutes of looking at it, because it involves workplace bullying.

I hate bullies.  I know, nobody likes them, but I truly fucking hate them.

I could tell you a lot of guff about why I hate them.  It’s enough to say that I was knocked around at school a lot when I was a kid, and for a decent whack of my life I kinda thought I had to just wear it when people threw their weight around.  I can’t abide the casual cruelty of bullies.  I hate the way they present you with your own weakness: “you wouldn’t last ten minutes working there – the boss would be chasing you about the place with a hammer“.  I hate their petty, venal abuses of power.  Above all, I hate the endless excuses they have: “you don’t know the pressure I’m under” … “I built this business up from nothing so I can run it how I want” … and the most sadistic and responsibility-denying of all: “if you don’t like it here, you know where the door is” when the all concerned know full well jobs are scarce and workers easily replaced.

As an aside, I notice the legal profession has a few dark secrets of its own –

lawyer overwork

It’s tempting to name the person in the case I’m working on, but I won’t.  I’m happy to let the pleadings do the talking (Michael Avenatti I am not).  It’s very tempting, however, to paste a Hellraiser meme into an affidavit and serve it on my opponent:

The case in question isn’t straightforward but I think I can win it.  I couldn’t fight back when I was on the factory floor.  The courtroom and the registry are my preferred battleground.  This defendant likes pushing people around?  I’ll play.

Let’s dance, motherfucker.

What didn’t you expect?

It’s Friday, and so I’m posting something a bit lighter than my usual casenotes for a change.

The other day, Nikki, who blogs at My Life to Our Life, put up a post comparing what she’s working at now to what she planned to do when she was a child.  This sort of thing has quite a bit of meaning for me given my four year employment farrago prior to coming back to the law, in which the previous installment looked like this –


View this post on Instagram

 

Huge Billboard in the making 💥 . . . . #sigmakers #signwriting #gvsignmakers #goulburnvalley #signs #billboard #wedoitall

A post shared by GV Signmakers (@gvsignmakers) on

 

Anyway, this got me to thinking about things in your job you didn’t expect when you went into it (or in my case, came back to it).  Something I didn’t expect on returning to the law was how often I’d find myself drinking cold tea and coffee.

I should explain.

I love what I do, and because of that, I get a bit focussed on it, especially if it’s a challenging file.  I also drink a lot of tea through the day.  This is a poor combination.  At least once a morning and a couple of times each afternoon I go and make myself a mug of extra-strong Tetley and then come back to my desk.  As soon as I do I find myself caught up by the current legal problem that I need to unpick.  Meanwhile, my mug sits there thus…

BP 25.10.18B
A mug of tea in its natural habitat

By the time I remember it, the tea is feeling unloved and (like any things that feel unloved) it’s having trouble staying excited about its job, which is to be hot and bracing.

I’m sure this isn’t a rare problem.  My friend Allie, for instance, at Living My Full Life, recently posted about how much she’s enjoying a line of seasonal teas.  She has a newborn baby, and I’m guessing from experience that she drinks a lot of it fairly lukewarm.  Anyway, it seemed to me that my experience now contrasts radically with my not-too-distant work as a factory hand or gardener or labourer when the tea break/smoko was close to sacred and was rarely-if-ever disturbed.  I suppose it’s because the five minutes of peace and quiet for a hot cup of tea or coffee made a welcome break from sun and dust and power tools and physical labour.

What do you find about your current work that you didn’t expect?

No closer to the ocean

Even a small tax can cast a long shadow (British North America in the 1770s, for instance).  A nineteenth century tax recently reverberated in a win for Chile in the International Court of Justice.

In February 1878, the Bolivian government imposed a (possibly unlawful) tax on the Chilean mining company Compañía de Salitres y Ferrocarril de Antofagasta which was operating in its territory.  The resulting War of the Pacific went badly for the Bolivia and its ally, Peru.  The subsequent Treaty of Peace and Friendship of 1904 resulted in Bolivia ceding its coastal territory to Chile, making it a landlocked country.  The matter remains a sore point in Bolivia.  In 2013 that country applied to the International Court of Justice for a finding that Chile was obliged to negotiate with Bolivia “in order to reach an agreement granting Bolivia a fully sovereign access” to the Pacific Ocean.

Antofagasta
Pacific Ocean cliffs north of Antofagasta, Chile (Image from here)

The Court’s decision was given on 1 October 2018.  The court noted as an initial point that –

While States are free to resort to negotiations or put an end to them, they may agree to be bound by an obligation to negotiate. In that case, States are required under international law to enter into negotiations and to pursue them in good faith. As the Court recalled in the North Sea Continental Shelf cases, States “are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification” …. Each of them“should pay reasonable regard to the interests of the other”.

The point might be usefully remembered in negotiations of any sort.

In the matter at hand, the Court did not consider that any of the bilateral agreements relied on by Bolivia required Chile to negotiate access to the sea.  Equally, Chile’s unilateral statements of general goodwill regarding negotiations did not create a legal obligation (sample text: “the policy of the Chilean Government has unvaryingly been a single one: to express its willingness to give an ear to any Bolivian proposal aimed at solving its landlocked condition”).

Interestingly, the court also found that the United Nations Charter did not assist Bolivia.  While the Charter provides that “[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”, the Court said

This paragraph sets forth a general duty to settle disputes in a manner that preserves international peace and security, and justice, but there is no indication in this provision that the parties to a dispute are required to resort to a specific method of settlement, such as negotiation. Negotiation is mentioned in Article 33 of the Charter, alongside “enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements” and “other peaceful means” of the parties’ choice. However, this latter provision also leaves the choice of peaceful means of settlement to the parties concerned and does not single out any specific method, including negotiation. Thus, the parties to a dispute will often resort to negotiation, but have no obligation to do so.

Relevant to matters involving other international bodies, it was also not significant that Chile had voted in support of resolutions by the Organization of American States recommending the two countries negotiate over the issue: “Chile’s participation in the consensus for adopting some resolutions therefore does not imply that Chile has accepted to be bound under international law by the content of these resolutions.”

Obligation to Negotiate Access to the Pacific Ocean (Bolivia v Chile) (Int’l Ct of Justice, 1 Oct 2018)