Pallante v Stadiums Pty Ltd (1975) H&FLR 2014-12

Pallante v Stadiums Pty Ltd and Ors (1975) H&FLR 2014-12 †

Supreme Court of Victoria

9 April 1975

Coram: McInerney J

Appearing for the Plaintiff: Mr Waldron QC and Dr C Pannam (instructed by KD Opat)
Appearing for the First Defendant: Mr O’Bryan QC and Mr J Larkins (instructed by John Cain and Peter Lamers)
Appearing for the Second Defendant: Mr Hedigan QC and Mr J Sher (instructed by Mercer, Lewenberg and Pryles)
Appearing for the Third Defendant: Mr F Dyett (instructed by Seton, Williams and Smith)
Appearing for the Fourth Defendant: No appearance

Catchwords: Victoria – boxing – unlawful – injury – referee – trainer – promoter – negligence – mismatch – abuse of process – amendment of pleadings

Facts:  The plaintiff, Martin Pallante* was a semi-professional boxer** who suffered eye injuries on 23 April 1970 in a boxing match which was conducted by Stadiums Pty Ltd, which had engaged the second defendant (Norman Foster) as referee and matchmaker.  He sought compensation from Stadiums and Foster, and also from his trainer (Sydney Thompson) and the fight promoter, Franco Marsili. It was alleged that, among other things, the defendants’ negligence resulted in the bout being a significant mismatch against a stronger boxer, Rocky Mattioli***.

The initial hearing of the case was terminated by the trial judge (Kaye J) on the grounds that a contemporary media report had introduced a risk of unfairness to the parties: Pallante v Stadiums Pty Ltd and Ors (1974), The Age, 10 December 1974, at 5.

Prior to the new trial commencing, the defendants applied to dismiss the proceeding on the basis that it was an abuse of process. On behalf of the first defendant it was argued that the plaintiff was engaged in an unlawful prize fight and could claim no damages for injuries so sustained. At the same time the plaintiff applied to amend his statement of claim.

Held: Dismissing the defendants’ application and allowing the plaintiff’s application –

1. Fighting between two persons who are not hostile to each other, and who do so in circumstances not likely to produce meaningful injuries or to incite them to hostility, is not an assault nor a breach of the peace. However, it may become an assault if a spirit of hostility develops and some or all parties develop the intention of inflicting substantial physical harm. The question is not determined by whether or not the fight is in public or private, for money or while using boxing gloves.

R v Coney (1882) 8 QBD 534, considered.

2. Physical violence is not an assault inflicted during a sporting contest which the participants have entered upon with the understanding that each accepts the risk of violence normally expected as part of the sport.

R v Moore (1898) 14 TLR 229 and R v Bradshaw (1878) 14 Cox CC 83, followed.

3. Boxing is not unlawful at common law provided it is conducted predominantly as an exercise in boxing skill and physical condition, consistent with rules which aim to keep injuries within reasonable limits and to reduce as far as possible the risk of serious injuries and to ensure that victory goes to the person with greater boxing skill. Whether a fight is unlawful or not must be decided on the evidence and is a jury question.

4. As a general rule, any amendments to a party’s pleadings should be allowed which will permit the real questions in issue to be litigated.


The Court’s judgment is available here.


† The classic report of this case is that at [1976] VR 331. Because the Court has recently made a copy of McInerney J’s original judgment available, and because more can now be reported about the parties and the case, the present headnote has been prepared.

* Also known as Bernie Martin.

** A contemporary report gives Martin Pallante’s occupation as ‘carpet layer’, although he is also said to have fought five professional bouts before the fight the subject of the claim: ‘Bout was a massacre, says boxer’, The Age (Melbourne), 6 December 1974, at 5.

*** A comparison of Pallante’s boxing record with Mattioli’s suggests the latter was by far the stronger fighter.

Ghane v Mid-South Institute of Self Defence Shooting Inc (2014) H&FLR 2014-11

Ghane and Ors v Mid-South Institute of Self Defence Shooting Inc and Ors (2014) H&FLR 2014-11 *

Supreme Court of Mississippi

16 January 2014

Coram: Waller CJ, Dickinson and Randolph PJJ, Kitchens, Pierce, King, Chandler, Coleman and Lamar JJ

Appearing for the Appellant: Benjamin Louis Taylor (of Taylor Jones & Taylor)
Appearing for the Respondent: Jay Marshall Atkins, Thomas P. Cassidy Jr (of Arnall Golden Gregory), Jeffrey E. Nicoson ( of Leitner, Williams, Dooley & Napolitan, PLLC), and Robert Q. Whitwell**.

Catchwords: Mississippi – firearm – live-fire training – Navy – accidental shooting – bulletproof wall – non-justiciable – political question – waiver – order

Facts: The defendants constructed and operated a live-fire training facility which the Navy frequently hired in order to conduct training. On 30 January 2008 during such a training exercise, a shot passed through a wall which was purportedly bulletproof, striking and killing a member of the naval team. The deceased’s survivors sought compensation from the defendants, but raised no claim against the Navy. Among the defences raised was comparative fault by the US Navy and personnel and the fact that the deceased had signed a general waiver in favour of the defendants.

It was not disputed that the law of Mississippi applied.

The defendants sought and were granted dismissal of the proceedings in the trial court on the grounds that the claim raised non-justiciable political questions relating to military training decisions and strategies. The plaintiffs appealed.

Held: By Randolph PJ, Kitchens, Pierce, King and Chandler JJ, allowing the appeal –

(1) The presence of any of six factors indicates a non-justifiable political question. The factors are (a) a clear constitutional commitment of an issue to the legislature or the executive; (b) absence of judicial standards for resolving the issue; (c) an inability to decide the issue without first making a policy decision of a non-judicial type; (d) an inability to decide the issue without manifesting disrespect for the legislature or executive; (e) an unusual need for adherence to a political decision which had been made and (f) the risk of embarrassment flowing from multiple pronouncements on one matter.

Baker v Carr, 369 US 217 (1962), followed.

(2) The mere involvement of the military in a case would not create a political question. For a private contractor to raise the political question defence it must establish that the plaintiff’s case requires examination of a military decision and that that decision is not able to be reviewed by the Court.

Carmichael v Kellog, Brown & Root Services Inc., 572 F.3d 1271 (11th Cir. 2009), followed.
McMahon v Presidential Airways Inc., 502 F. 3d 1331 (11th Cir. 2007), applied.

(3) Broad, general waivers of negligence are to be construed strictly against the defendant asserting them.

Turnbough v Ladner, 754 So.2d 467 (Miss. 1999), applied.

(4) Quaere, whether a waiver applies to a person who undertakes the activity to which the waiver applies pursuant to binding orders.

By Dickinson PJ, that the appeal should be allowed because there was insufficient evidence as to whether a political question was in fact raised by the case.

By Waller CJ, Coleman and Lamar JJ (dissenting), that the appeal should be dismissed. The defendant’s decision to raise defences of causation and the Navy’s comparative negligence. This would require a jury to apportion fault between the Navy and the defendants and this would require military decision to be reviewed, presenting a non-justifiable issue.


The Court’s judgment is available here.


* This judgment is on the border of area of ‘health and fitness law’. It is included on the grounds that the political question defence may apply to some types of high level sport (for example, national or quasi-national teams or publicly funded teams and competitions) and because of the potential relevance of the waiver issue.

**  Since appointed to the bench.

Vesely v Armslist LLC (2013) H&FLR 2014-10

Vesely v Armslist LLC (2013) H&FLR 2014-10

United States District Court (N.D. Illinois)

29 July 2013

Coram: Norgle J

Appearing for the Plaintiff: Jonathan Lowy and Lindsey Merikas (Brady Center to Prevent Gun Violence) and Jay Dobrutsky and Alexander Marks (Burke, Warren, MacKay & Serritella)
Appearing for the DefendantAndrew Lothson and James Vogts (Swanson Martin & Bell LLP)

Catchwords: Illinois – firearm – illegally purchased – advertisement – website – wrongful death – negligence – public policy – duty – foreseeability

Facts: On 13 April 2011 Demetry Smirnov (a resident of Canada) killed Jitka Vesely in Illinois using a firearm he had purchased illegally from a third party in Washington State. The firearm had been advertised for sale on, a website operated by the defendant (a company registered in Oklahoma).

The plaintiff sought compensation from the defendant for wrongful death on the basis of negligence, as well as for the deceased’s pain and suffering pre-death, and for the deceased’s family’s costs associated with his funeral and burial. In particular, it was alleged that public policy required the court to recognise that the defendant owed a duty to the public at large, and that the defendant had negligently designed its website so that firearms could be sold illegally to dangerous people..

The defendant sought to have the claim dismissed on the grounds that it did not owe any duty to the deceased.

Held: dismissing the claim –

(1) A claim under Illinois’ Wrongful death Act requires the plaintiff to demonstrate that (a) the defendant owed a duty to the deceased; (b) that the duty was breached; (c) that the breach proximately caused the death; and (d) financial loss was caused to certain categories of people identified in the act.

Lough v BNSF Railway Co., 988 NE.2d 1090 (Ill. App. Ct. 2013), applied.

(2) In considering whether public policy requires a duty to exist a court should consider the reasonable foreseeability and likelihood of the injury, the burden to be imposed in preventing it and the consequences of so burdening a defendant.

Chicago v Beretta USA Corp., 821 NE.2d 1099 (Ill. 2004), applied.

(3) In this case it was relevant to the question of foreseeability that the defendant’s website was not involved in the sale or delivery of the firearms advertised on its website. Crimes by third parties who used the website to buy and sell firearms illegaly were not reasonably foreseeable. Further, requiring the defendant to alter its mode of business to prevent unlawful sales would impose an effectively business-ending burden on it.

Pavlides v Niles Gun Show, Inc., 93 Ohio App.3d 46, 637 N.E.2d 404 (Ohio App. Ct. 1994), distinguished


The Court’s judgment is available here.

An appeal has been lodged.


Varipatis v Almario (2013) H&FLR 2014-9

Varipatis v Almario (2013) H&FLR 2014-9

Court of Appeal of New South Wales

18 April 2013

Coram: Basten, Meagher and Ward JJA.

Appearing for the Appellant: Mr D Higgs SC and Ms E Peden (instructed by TressCox Lawyers)
Appearing for the Respondent: Mr DE Graham SC and Mr NJ Broadbent (Instructed by Turner Freeman)

Catchwords: New South Wales – obesity – liver disease – cancer – medical practitoner – refusal to attempt weight loss – failure to treat patient’s obesity – negligence – bariatric surgery – reasonable care – breach of duty – state of medical knowledge

Facts: Mr Almario (plaintiff) was morbidly obese. It was common ground that his obesity resulted in a number of conditions including liver disease which progressed to cirrhosis and finally to terminal liver cancer. He was a patient of Dr Varipatis (defendant) from August 1997 to February 2011. On 27 April 1998 the appellant referred him to a Dr Yates for pulmonary problems. Dr Yates saw the appellant twice in June and July 1998 and recommended that he be referred to a specialist at the obesity unit of a major hospital. When the plaintiff consulted the defendant on 30 July 1998, he formally declined such a referral and stated that he would not attempt weight loss.

The plaintiff sued the defendant on the basis that he (the defendant) had failed to take necessary steps to treat the plaintiff’s obesity, resulting in him developing the liver conditions.

At trial the court held that the defendant had been negligent in failing to refer the plaintiff to a bariatric surgeon by 30 July 1998, in failing to refer him to an obesity clinic, and in failing to refer him to a hepatologist or similar physician by 30 September 2000. However, only the failure to refer him to a bariatric surgeon was found to be causative*.  The defendant appealed.

Held: Upholding the appeal –

Per Basten JA (Ward JA agreeing) and Meagher JA –

(1) To take reasonable care for the health of a patient, a general practitioner may be obliged to advise bluntly that weight loss is required, to discuss how this may be achieved, and to encourage them to accept suitable referrals. However, the general practitioner’s duty of care does not require an exercise in futility: if a patient declines to take the advise of his general practitioner and appropriate specialists there is no breach of duty in failing to write a further referral.

(2) On the state of medical knowledge in 1998, a reasonable general practitioner would not have referred the plaintiff to a bariatric surgeon at that time. Accordingly, Dr Varipatis had not been negligent in failing to make such a referral.

Per Basten JA (Ward JA agreeing) –

(3) On the state of medical knowledge in 2000, it was unlikely referral to a hepatologist would have resulted in any particular recommendation in relation to weight loss.


The Court’s judgment is available here.

On 16 August 2013 the High Court of Australia declined to hear an appeal from the Court of Appeal’s decision: Almario v Varipatis [2013] HCATrans 193

* Almario v. Varipatis (No. 2) [2012] NSWSC 1578

S.E.F. v Archer-Daniels-Midland Co & Ors (2014) H&FLR 2014-8

S.E.F. v Archer-Daniels-Midland Co & Ors (2014) H&FLR 2014-8

United States District Court (W.D.N.Y.)

21 April 2014

Coram: Skretny CJ

Appearing for the Plaintiff: J. Michael Hayes (of Law Offices of J. Michael Hayes)
Appearing for the Defendant: Kevin Hogan (of Phillips Lytle LLP) and Dan K. Webb, Stephen V. D’Amore, Scott P. Glauberman and Cornelius M. Murphy (all of Winston & Strawn LLP)

Catchwords: New York – high-fructose corn syrup – diabetes – negligence – product liability – failure to warn – market-share liability – feasible redesign

Facts: The defendants* were manufacturers of high-fructose corn syrup (HFCS). The plaintiff was a 14 year old girl who alleged that she had consumed HFCS in common foods and that this caused her to develop Type 2 diabetes. She sought compensation from the defendants based on negligence, gross negligence, strict products liability and failure to warn of the danger of a product. She relied on the doctrine of market-share liability, whereby a defendant can be presumed liable for a plaintiff’s injury to the extent of its share of the relevant market**.

The defendants’ position was that the plaintiff could neither connect her condition to HFCS, nor to any particular defendant. It was also contended that Federal food-additive laws pre-empted her claim. The defendants applied to dismiss the claim.

Judicial notice was taken that type 2 diabetes could be caused by a number of factors including diet, exercise (or lack thereof) and family history. It was common ground that the law of the state of New York applied to the claim.

Held, dismissing the plaintiff’s claim,

(1) The plaintiff had failed to state a plausible ground for relief and therefore the claim failed.

(2) An implausible claim ought not be allowed to proceed on the basis that may be validated or undermined through discovery.

Ashcroft v Iqbal, 556 US 662 (2009) and Bell Atl. Corp. v Twombly, 550 US 544 (2007), followed.
Pelman v McDonald’s Corp., 396 F.3d 508 (2d Cir., 2005), not followed.

(3) New York law does not allow “market share liability” to apply in cases where the manifestation of injury is not alleged to be far removed from the time of the allegedly harmful product’s consumption. It also does not allow the doctrine to apply where there is no signature injury conclusively linking the product to the harm, and certainly not where there is no clear public policy that it should apply.

Hamilton v Beretta USA Corp., 96 NY.2d 222, 750 NE.2d 1055 (2001) and Brenner v American Cyanamid Co., 263 AD.2d 165 (4th Dept, 1999), followed.

(4) New York law recognizes claims of strict liability in relation to design defects where it can be shown that: the product as designed presented a substantial risk of harm; it was feasible to design it in a safer manner; and the design defect was a substantial factor in causing injury. However, if the necessary redesigning causes the product to cease to exist, a design defect claim must fail.

DiBartolo v Abbott Labs., 914 F. Supp. 2d 601 (S.D.N.Y., 2012) and Clinton v Brown & Williamson Holdings Inc., 498 F. Supp. 639 (S.D.N.Y., 2007), followed.


The Court’s judgment is available here.


* Archer-Daniels-Midland Co, Cargill Inc, Ingredion Inc, Penford Products Co, Tate & Lyle Ingredients Americas LLC and Roquette America Inc.
** Hymowitz v Eli Lilly & Co, 73 NY.2d 487; 539 NE.2d 1069 (1989).

Whittaker v America’s Car-Mart Inc. (2014) H&FLR 2014-7

Whittaker v America’s Car-Mart Inc. (2014) H&FLR 2014-7

United States District Court (E.D. Missouri)

24 April 2014

Coram: Limbaugh DJ

Appearing for the Plaintiff: Mr Mark Welker of Jackson & Welker)

Appearing for the Defendant: Not identified.

Catchwords: Missouri – termination of employment – obesity – Americans with Disabilities Act – disability – discrimination

Facts: The plaintiff commenced employment with the defendant in August 2005.  He was dismissed from the position of General Manager on 1 November 2012.  He alleged that he was dismissed by reason of his severe obesity which he asserted was a disability within the meaning of the Americans with Disabilities Act 1990 (Act).  He did not require any special provision to be made by his employer in order to discharge his duties.

The defendant applied to dismiss the discrimination proceeding on the basis that severe obesity is not a disability under the Act unless it relate to an underlying physiological condition.

Held, dismissing the application,

(1) The Americans with Disabilities Amendments Act 2008 (Amending Act) requires “disability” to be construed in favour of broad coverage of claimants.

Toyota Manufacturing, Kentucky, Inc v Williams, 534 US 184 (2002), disapproved.

(2) Because of the expanded coverage effected by the Amending Act, it was open to argue that obesity can be a disability.

Lowe v American Eurocopter LLC, No. 1: 10CV24-AD (N.D. Miss. Dec. 16, 2010), followed.


The Court’s judgment is available here.

Kingswood Golf Club Ltd v Smith and Sutton (2005) H&FLR 2014-6

Kingswood Golf Club Ltd v Smith and Sutton (2005) H&FLR 2014-6

Court of Appeal of Victoria

16 September 2005

Coram: Maxwell P, Callaway and Ashley JJA

Appearing for the Appellant: Mr DFR Beach SC and Mr Chris Winneke (instructed by Cornwall Stodart)

Appearing for the First Respondent: No appearance (1)

Appearing for the Second Respondent: Mr JP Brett (instructed by Phillips Fox, now part of DLA Piper)

Catchwords: Victoria – golf – golf cart – concealed hazard – loss of control – negligence – apportionment

Facts: The first and second respondents (respectively Smith and Sutton) were playing golf on 12 February 2002 at a course operated by the appellant (Club). While moving to the third tee, the front left tyre of a golf cart driven by Sutton went into a concealed depression in the ground which contained two solenoid boxes. In order to regain control of the cart Sutton steered hard to the right and accelerated. The cart veered to the right and collided with Smith, who was on foot. Smith suffered extensive injuries.

At first instance the matter was heard without a jury in the County Court of Victoria by Judge Wilmoth (2). Her Honour found that the depression was concealed by grass but could have been made obvious by clipping the grass. Her Honour also found that after exiting the depression Sutton had had sufficient time to brake but failed to do so. She found that both defendants had been negligent and apportioned liability 60% to the Club and 40% to Sutton. Damages were assessed at $292,216.90.

The Club appealed in relation to liability and apportionment.

Held: dismissing the appeal –

Per curiam, that it was open on the evidence for the judge to have found that the Club breached its duty of care to the plaintiff by failing to make the depression perceptible. While Sutton could have made better choices as to what to do after the wheel entered the depression, the chain of causation from the Club’s negligence had not been broken.

By Ashley JA (Maxwell P agreeing), that apportionment of fault is a question of proportion, balance, emphasis and the weighing of different considerations. The apportionment arrived at by the trial judge was within the available range of decisions.

By Callaway JA (dissenting), that Sutton’s negligence was greater than that of the Club and that liability should be apportioned 75% against her and 25% against the club.

Podrebersek v Australian Iron & Steel Pty Ltd, 59 ALJR 492 (Austl., 1985), followed.


The Court of Appeal’s judgment is available here.


(1) Because liability and quantum were not in issue on appeal as between the plaintiff and at least one defendant, her interests were not affected and so no appearance was required. At trial she was represented by Mr Richard Kendall QC and Mr David O’Callaghan (instructed by Nicholas O’Bryan of Galbally & O’Bryan)

(2) Noreen Smith v Kingswood Golf Club Ltd and Joan Sutton [2004] VCC 9