March 2015 – Page 2 – Stephen the Lawyer

Posted on March 14, 2015 by Stephen Tuck

Police v Dumughn (2002) H&FLR 2015-23

Police v Darren Scott Dumughn (2002) H&FLR 2015-23

Wollongong Local Court (New South Wales)

12 November 2002

Coram: Unnamed Magistrate

Appearing for the Prosecution: Not known.
Appearing for the Defendant: Not known (possibly unrepresented).

Catchwords: New South Wales – criminal law – theft of tobacco products – convicted in absentia

Facts: The defendant was a 29-year-old supermarket night filler and packer. It was alleged that in 2000 and 2001 he stole cigarettes valued at $4,986.00 from his employer.

He did not attend the hearing “because he had been afraid of being found guilty of something he did not do”.

Held: Despite the defendant’s failure to appear, the court considered that it was able to deal with the matter and convicted him in absentia.

Judgment

No written judgment is available. This casenote has been prepared based on the report in the Illawarra Mercury of 13 November 2002.

Note: The defendant was subsequently arrested, granted bail and required to reattend court on 3 December 2002. The subsequent disposition of the mater is not known.

Comment: This case is interesting for the fact that the defendant was convicted in his absence. Noting the common concern with the health effects of tobacco (1) and their economic impact (2), it is interesting to speculate whether theft of cigarettes (as opposed to, say, apples) made the court less sympathetic than it might otherwise have been. It is also striking that radically contrasting philosophies would potentially agree that the defendant was in some ways harshly treated: a libertarian perspective would be alert to theft of these particular consumer goods being treated particularly harshly (3), while a socialist analysis may be inclined to afford some indulgence to a person addicted to a commodity inflicted on the public (4).

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(1) Consider State v Native Wholesale Supply (2014) H&FLR 2014-32 and Proprietor v Adolfs (2014) H&FLR 2014-36.

(2) Adam Beam, ‘Kentucky Lawmakers Tackle Details of $100M Tobacco Settlement’, Insurance Journal, 13 March 2015

(3) For example, “Smoking is a legal activity that doesn’t cause violence, yet the government sees it as worse than murder”: Australian Smokers’ Rights Party, ‘Tell them they’re dreaming’, 19 July 2012.

(4) Cf Louise O’Shea, ‘An unhealthy dose of corporate meddling’, Red Flag, 3 March 2014.

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Posted on March 13, 2015 by Stephen Tuck

In re death of Sizeland (2013) H&FLR 2015-22

Inquest into the death of Rex Sylvester Sizeland (2013) H&FLR 2015-22

Coroners’ Court of Victoria

28 June 2013

Coram: Coroner Parkinson

Appearing for the family of the deceased: Mr G Stewart (solicitor)
Appearing for Mr Costa: Mr T Bourke (instructors not identified).

Catchwords: Victoria – Coroner – cyclist – hit by car – distracted driver – death

Facts: The deceased was aged 66 years and an experienced road cyclist. On 21 December 2009 he was riding between Torquay and Barwon Heads. During the ride, he and the other two men with whom he was riding were struck from behind by a car driven by a Mr Costa.

The evidence of lay witnesses was that the deceased and the other two riders were to the left of the road and using about half of the width of the northbound lane. The court concluded that there was no reason for Mr Costa not to have noticed the cyclists. The court was somewhat critical of his evidence and considered it likely that he had been distracted by something inside the vehicle, although it could not conclude that he had been reading a text message.

Held: That Mr Sizeland’s death was preventable and that the death could have been prevented had he paid proper attention to the task of driving. No action of Mr Sizeland’s caused his death.

Judgment

The Court’s judgment is available here.

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Posted on March 12, 2015 by Stephen Tuck

Grebing v 24 Hour Fitness USA, Inc (2015) H&FLR 2015-21

Timothy Grebing v 24 Hour Fitness USA, Inc (2015) H&FLR 2015-21

California Court of Appeal (Second District)

29 January 2015

Coram: Kitching PJ, Lavin and Aldrich JJ

Appearing for the Plaintiff: Charles R. Grebing, Andrew A. Servais, and Dwayne H. Stein (of Wingert Grebing Brubaker & Juskie)
Appearing for the Defendant: Jack C. Nick and Robert R. Willis (of Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz)

Catchwords: California – personal injury – faulty machine – waiver – negligence – product liability

Facts: The plaintiff was injured on 9 May 2012 while using a “low row” weight training machine at the defendant’s “24 Hour Fitness” club in La Mirada. The clip securing the handlebar of the machine gave way, causing the plaintiff to suffer injuries to his head, back and neck. The defendant conceded that the machine had been fitted with the wrong clip.

The plaintiff brought proceedings against the defendant for negligence, negligent products liability, strict products liability and breach of the implied warranty of merchantability. The defendant sought and was granted summary dismissal of the proceeding based on the release signed by the plaintiff, relieving the defendant of liability for injury resulting from the negligence by it or anyone acting on its behalf: Grebing v 24 Hour Fitness USA, Inc (L.A. Co. Sup. Ct, Jessner J, 28 February 2014, unreported). The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that –

1. A release of liability for future negligence will be valid, unless it is barred by statute or is against the public interest. The public interest is not generally considered to be impaired by releases relating to exercise facilities or recreational sport.

Tunkl v Regents of University of California (1963) 60 Cal.2d 92 and Capri v L.A. Fitness International LLC (2006) 136 Cal.App.4th 1078, followed.

2. A release of liability for future gross negligence will generally be considered unenforceable as a mater of public policy. Gross negligence is considered to be an extreme departure from ordinary standards, or a “want of even scant care”. The available evidence did not suggest the presence of gross negligence.

City of Santa Barbara v Superior Court (2007) 41 Cal.4th 747, followed.

3. The release covered the risk of defective maintenance or assembly of exercise equipment because this risk was reasonably related to use of the facility and equipment.

Leon v Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, followed.

4. The plaintiff’s claim based on product liability was defective. A defendant is not liable in products liability if the dominant purpose of the transaction with the plaintiff is provision of services rather than a product, which was the case given the services supplied.

Ontiveros v 24 Hour Fitness USA Inc (2008) 169 Cal.App.4th 424

Judgment

The Court’s judgment is available here.

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Posted on March 11, 2015 by Stephen Tuck

In re death of Sidebottom (2013) H&FLR 2015-20

Inquest into the death of David Andrew Sidebottom (2013) H&FLR 2015-20

Coroners’ Court of Victoria

18 October 2013

Coram: Coroner Saines

Appearing for Ms Connor: Mr Brendan James (solicitor)

Catchwords: Victoria – Coroner – cyclist – distracted driver – death – funding

Facts: The deceased was aged 53 years and an experienced cyclist. On 2 January 2011 he was riding west on Murradoc Road at Drysdale. He was approached from behind by a Honda CRV driven by a Ms Connor. The front left corner of the Honda struck the bicycle and caused the deceased to be thrown off and suffer fatal injuries.

Both at the time of the accident and subsequently the driver was not able to say how the accident occurred (the Court was satisfied that this was not intentional or evasive). No charges were laid against her. The driver was not affected by alcohol, speeding or using a mobile phone. There was some evidence that she may have been distracted. There was also evidence that the deceased may have deviated suddenly into the path of Connor’s vehicle.

Held: 1. It was likely that the deceased had deviated into the path of Ms Connor’s car in circumstances where she may have neither anticipated nor seen the deviation.

2. Decisions as to the spending of public money was not generally appropriate for a recommendation under §67 of the Coroners Act. That said, a significant increase in cyclist numbers could support a special case for priority funding in order to enhance community health and safety and reduce the risk of death or injury to cyclists.

Judgment

The Court’s judgment is available here.

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Bay Area Bicycle Law

Posted on March 11, 2015April 18, 2018 by Stephen Tuck

The Arts Party – a Response

I posted a piece the other day pondering an issue that I felt was raised by the creation of the Arts Party. Last night a very good comment was made on the piece by the leader of that party – I thought it was a great response, so I’m copying and pasting it hereunder –

Hello there, I’d like to chime in on this post if I may, speaking as the leader of the Arts Party! We’ve got 1500 members across all states and territories of Australia and only registered in August 2014. Our first policy document will be out soon and was the result of grassroots meetings, discussion and inputs that occurred again in every state and territory – I was personally at most of those meetings!

We absolutely focus on the need and right of EVERY Australian to have a more creative and cultural life (to be a creator and a consumer). It’s clear that those of us living in the cities are the relatively lucky ones, when it comes to access to output and facilities (if we can afford them that is). However regional and rural communities are often virtually starved of quality artistic and cultural content and performances, something that needs addressing first.

Artistic and creative experiences should not require driving 2 hours to the Opera House, or a 2 hour flight, they should be happening in suburbs and local streets, communities and towns across the city, the state, the country. It’s good for the economy, health, tolerance, and “us” in so many ways…

I wrote a while back that microparties are a very encouraging sign for our democracy: having secured life and liberty, some proper argument can be had as to the pursuit of happiness (however that term is understood). For myself, I surely look forward to following the Arts Party’s contribution.

Posted on March 10, 2015 by Stephen Tuck

S.F. v Archer Daniels Midland Co (2014) H&FLR 2015-19

S.F. v Archer Daniels Midland Co, Cargill Inc, Ingredion Inc, Tate & Lyle Ingredients Americas LLC and Roquette America Inc (2014) H&FLR 2015-19

United States Court of Appeals (Second Circuit)

11 December 2014

Coram: Chin and Carney JJ, Sweet DJ

Appearing for the Plaintiff: John Michael Hayes (of Law Office of J. Michael Hayes)
Appearing for the First, Second, Third and Fourth Defendants (Archer, Cargill, Ingredion, and Tate): Stephen Victor D’Amore, Dan K. Webb, Scott P. Glauberman, Cornelius M. Murphy and William P. Ferranti (all of Winston & Strawn LLP) and Kevin M. Hogan (of Phillips Lytle LLP)
Appearing for the Fifth Defendant (Roquette): David Ray Adams (of Hurwitz & Fine PC) and Peter N Wang (of Foley & Lardner LLP)

Catchwords: New York – High Fructose Corn Syrup – diabetes – negligence – products liability – defective design – market share liability

Facts: The plaintiff was the father of SEF, an infant who had consumed high fructose corn syrup, of which the defendants were (and are) major manufacturers. It was alleged that this product was a substanial factor in SEF’s development of Type 2 diabetes. SF brought proceedings against the defendants based on negligence, gross negligence, strict products liability (in relation to defective design), and failure to warn. The defendants sought and were granted summary dismissal of the claim: S.E.F. v Archer Daniels Midland Co (2014) H&FLR 2014-8. The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that –

1. In general, New York law views claims based on strict products liability and negligence to be functionally synonymous. To state a claim for defective design in relation to a products liability (or, by extension, negligence) claim, the plaintiff must allege that the the product as designed posed a substantial risk of harm, that it was practicable to design the product more safely, and that the defective design was a substantial factor in causing injury. The plaintiff’s claim failed because she did not allege a safer alternative design.

Lewis v Abbott Labs, No. 08 Civ. 7480(SCR)(GAY), 2009 WL 2231701 (S.D.N.Y. July 24, 2009); Voss v Black & Decker Manufacturing Co, 59 N.Y.2d 102 (1983); Goldin v Smith & Nephew Inc., No. 12 Civ. 9217(JPO), 2013 WL 1759575 (S.D.N.Y. Apr. 24, 2013).

2. Obiter, a complete ban on a product is not a permissible “safer alternative design” in a design defect case

Clinton v Brown & Williamson Holdings Inc., 498 F.Supp.2d 639 (S.D.N.Y. 2007) and Adamo v Brown & Williamson Tobacco Corp, 11 NY.3d 545 (2008), considered.

3. The case was not appropriate for analysis under the principle of “market share liability” for the substantially the same reasons as those outlined by the trial court.

Hymowitz v Eli Lilly & Co, 73 NY.2d 487 (1989), considered.

Judgment

The Court’s judgment is available here.

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Posted on March 9, 2015April 18, 2018 by Stephen Tuck

An “Arts Party” for Australia?

Reading up on the New South Wales election recently, I saw a reference to a very new microparty that rather caught my eye. It calls itself the Arts Party, and exists to promote the cause of art and creativity at a political level.

This is a movement I have some sympathy with, since it seems of a piece with my general guiding principle of mens sana in corpore sano. But I did ask myself: Is such a party reinforcing some inherent problems as well?

What crosses my mind is this: some members of what one might call the creative classes regard the suburbs (or outer suburbs) of our major cities with condescension. Another views them with contempt bordering on genuine hatred. Beyond the suburbs, a third seems to view rural areas as almost another country.

In addition, perhaps the most recognisable focus of rural cultural output is the ABC’s radio program Australia All Over, which is (not unfairly) derided as hopelessly folksy and unchallenging.

In the circumstances, then, must the program of an Arts Party necessarily involve a one-way conversation from the metropolis to the rest of the country, where one side has everything to say about culture and the other little or nothing to teach? And if so, is this desirable?

Posted on March 9, 2015 by Stephen Tuck

In re death of Lynch (2014) H&FLR 2015-18

Inquest into the death of Brendan Paul Lynch (2014) H&FLR 2015-18

Coroners’ Court of Victoria

2 July 2014

Coram: Coroner Carlin

No appearances (finding without inquest)

Catchwords: Victoria – Coroner – cyclist – highway – hit by bus – fail to give way – signage

Facts: The deceased was aged 52 years and a keen recreational cyclist. On 31 March 2013 he was cycling from Benalla to Melbourne. At around 1:55pm he was cycling in the emergency lane of the Hume Freeway at the point where the Freeway merges with the Northern Highway. He turned his bicycle to the left, bringing him across the path of a bus which was merging onto the Hume Freeway. Mr Lynch sustained fatal injuries in the collision.

Witnesses said that the deceased had extended his left arm to signal a left turn, but did not agree on whether he looked back for traffic. The witnesses agreed that the bus driver could not have avoided the collision. The bus’ speed was estimated at between 80-90 kph (50-56 mph). A sign on the on-ramp warned of cyclists crossing within the next 150 metres.

Held: 1. That the deceased had failed to give way to the bus pursuant to the Road Safety Road Rules 2009, r.74 and that there was nothing the driver could have done to avoid the collision.

2. Effective signage may have prevented the deceased crossing the on-ramp in the manner which he did. Signs are particularly desirable in circumstances where the road rules are likely to be disobeyed. In the present case, Mr Lynch’s non-compliance may have been due to fatigue and a failure to think clearly.

3. It was recommended that a sign reading “cross here with care” should be erected at the point of collision, and that “cross here with care” signs in general should also indicate that a cyclist must give way to merging traffic and cross the on-ramp at a right angle at a particular point.

Judgment

The Court’s judgment is available here.

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Posted on March 8, 2015 by Stephen Tuck

Boroondara City Council v Cattanach (2004) H&FLR 2015-17

Boroondara City Council v Ellen Cattanach (2004) H&FLR 2015-17

Court of Appeal (Victoria)

20 August 2004

Coram: Winneke P, Chernov JA and Bongiorno AJA

Appearing for the Appellant: Messrs A.G. Uren Q.C. and G.J. Moloney (instructed by Hunt & Hunt)
Appearing for the Respondent: Messrs D.A. Kendall Q.C. and David Martin (instructed by Hounslow & Associates)

Catchwords: Victoria – runner – defective pavement – trip and fall – injury – negligence

Facts: On the morning of 12 December 2000 the plaintiff was running recreationally along a footpath in the defendant’s municipality. She ran with two small dogs which were at the end of a leash which she was holding. As she passed in front of 39 Gordon Street, Balwyn, she tripped on an uneven section of footpath and fell, suffering significant injuries.

The occupant of 39 Gordon Street, Balwyn, had alerted the defendant to the damage to the footpath in 1995 and 1996. In 1997 the defendant had removed a tree adjacent to the defect but took no steps to repair the footpath.. Within two weeks of the plaintiff’s fall repairs were effected; it was common ground that the repairs were inexpensive.

The plaintiff successfully sued the municipality for negligently failing to make repairs and was awarded damages: Cattanach v Boroondara City Council (County Ct. of Vic., Judge Bourke, 20 June 2003, unreported). The defendant appealed.

Held: Per curiam, allowing the appeal and dismissing the claim, that

1. A municipality is not under a duty to prevent or eliminate all dangers in footpaths. In most cases, where a municipality knows or ought to know of such a danger, it is obliged to remedy it only if the danger would not be obvious to an ordinary, reasonable pedestrian taking proper care for their own safety. The onus is on the plaintiff to establish that the hazard was not one which could have been avoided with the exercise of reasonable care.

Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Newcastle City Council v Lindsay (NSW Ct App., Giles and Tobias JJA, McLellan AJA, 22 June 2004, unreported); and Temora Shire Council v Stein (2004) 134 LGERA 407, considered.

2. Whether a defect in a footpath causes a reasonable foreseeability of harm, and whether the hazard is obvious, must be considered from the perspective of the ordinary, reasonable pedestrian keeping a proper lookout. That is, from the perspective of a person walking. Persons who are not walking but (for example) running, skating, cycling are required to pay greater attention to the state of the path given the greater difficulty in observing hazards when moving faster than a walk. These users should not expect councils to maintain footpaths to a higher standard than that required for safe walking.

Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512

Judgment

The Court’s judgment is available here.

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Posted on March 7, 2015 by Stephen Tuck

In re death of Bailey (2014) H&FLR 2015-16

Inquest into the death of Keiran Bailey (2014) H&FLR 2015-16

Coroners’ Court of Victoria

25 August 2014

Coram: Coroner Spanos

No appearances.

Catchwords: Victoria – Coroner – cyclist – hit by car – death – mental illness – fitness to drive – duty to report

Facts: The deceased was aged 44 years. On 8 March 2011 at around 1:45pm he cycled from his home to a shopping centre. He was cycling in a designated bike lane of a road. The car lanes of the road at the relevant point narrowed from three lanes to two. A car driven by a Mr Veerman, travelling at least 10 kph (6 mph) above the speed limit failed to merge, drove into the bike lane and struck the deceased, causing fatal injuries. Mr Veerman fled the scene and was subsequently convicted of a range of offences relating to the collision: R v Veerman (2011), Herald Sun, 23 December 2011*.

In the years before the collision Mr Veerman had suffered from marked mental illness and had received some level of psychiatric care. He held a drivers licence at the time of the collision.

Held: It was recommended that medical professionals be educated to ensure patients’ fitness to drive would be at the front of doctors’ minds when assessing patients with conditions likely to affect their capacity to drive safely.

Judgment

The Court’s judgment is available here.

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* A partially successful appeal by Veerman was subsequently brought: Veerman v R (Vic. Ct App., Weinberg and Harper JJA, T Forrest AJA, 24 August 2012, unreported).

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