Failure to predict.

It’s hard to imagine that a police sergeant or bail justice could have predicted what would happen later.

It’s not clear how he was released.  In the afternoon or evening of 15 March 2017 one Macarthur was drunk and randomly punching at passengers at a Melbourne railway station.  He was arrested.  At about 10:00pm on 15 March 2017 he was released from police custody.  Seven hours later – at about 5am – he met a young woman at a tram stop.  He followed her onto – and off – the tram.  He accosted and raped her near a hospital.

The Crimes Act 1958 (Vic) §38 relevantly provides that –

(1) A person (A) commits an offence if—

(a) A intentionally sexually penetrates another person (B); and

(b) B does not consent to the penetration; and

(c) A does not reasonably believe that B consents to the penetration.

(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

(3) The standard sentence for an offence against subsection (1) is 10 years.

The offender pleaded guilty before Judge Lawson in the Melbourne County Court.  Her Honour considered the crime to have been brazen and predatory.  She imposed a sentence of seven years and nine months, to serve a minimum of five years.  He had already served 15 months on remand.

Director of Public Prosecutions v Macarthur (2018) Herald Sun, 2 June 2018, p.21

What do you mean “dangerous”?

Tewksbury, Massachusetts isn’t a big place. It still generated an interesting appeal on public liability though.

On 20 January 2012 Eileen Potvin and her boyfriend stopped to get fuel at a service station in Tewksbury. While her boyfriend was paying for the fuel she went looking for a squeegee to clean the windshield. She began to walk towards the car backwards (for reasons which were not explained). The heel of her shoe caught in a groove in the paving. She fell and was injured. The groove was part of a legally mandated barrier designed to catch fuel spills.

1907 Andover Street, Tewksbury MA (Image from here)

Potvin sued the operator of the service station. She alleged that the groove was a hazardous condition of the premises and that the operator had failed to warn of them.  She conceded however that they were open and obvious to the average poerson.  The defendant sought summary dismissal of the claim, which was granted by the US District Court for Massachusetts: Potvin v Speedway LLC, 264 F. Supp 3d 337. Potvin appealed.

The Court of Appeals for the First Circuit noted that it was common ground that  Massachusetts law applied. The Court accepted that a landowner generally owes a duty to protect lawful visitors from dangerous conditions. In practical terms, however, they need only maintain the premises to a standard that would be safe to a person exercising the minimum care required in the circumstances.

Under Massachusetts law, property owners are relieved of any duty to warn of open and obvious conditions, including those that present open and obvious dangers, since it is logical to expect that a lawful visitor exercising reasonable care for her own safety would not fall victim to such “blatant hazards.”

Because the grooves were open and obvious, the defendant was not obliged to warn visitors about them.

The plaintiff also contended that the defendant had a duty to remedy the danger presented by the grooves, on the basis that there was a heightened reason to foresee that even though the hazard was obvious an open, it presented a danger likely to cause harm.  This argument was also rejected.  She suggested signs and brightly coloured paints as remedies.  The court retorted that –

warnings are not remedies. … [A]llowing a plaintiff to conflate warnings with remedies would frustrate settled doctrine. … Where, as here, the plaintiff does not propose a feasible remedy, a property owner cannot be held to answer for a putative duty to remedy.

The appeal was dismissed

Potvin v Speedway LLC (2018) US First Circuit Court of Appeals, 4 June 2018

The Fourth is not with you

One of the more difficult parts of a personal injury lawyer’s job is explaining to the victim of tragedy that they don’t have a case.  The Fifth Circuit of the US Court of Appeals has to do the same thing.

On 21 January 2015 John Gorman was undertaking firearms training connected with his work for the Mississippi Gaming Commission.  Fellow instructor Robert Sharp forgot to replace his own real firearm with a dummy firearm.  In the course of training he shot Gorman in the chest causing fatal injuries.

Image from here

Gorman’s widow sought compensation from Sharp on the grounds that he had violated the American Constitution’s Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….

Sharp’s application to dismiss the proceedings was denied by the US District Court: Gorman v State of Mississippi, 258 F.Supp.3d 761 (2017).  He appealed to the Fifth Circuit Court of Appeals.

The appeal was upheld.  Existing case law had consistently said that there is no liability under the Fourth Amendment absent deliberate and intentional conduct.  In this case it was undisputed that Sharp genuinely believed he was using a dummy firearm and had not shot Gorman wilfully.  The court observed sadly that –

The circumstances that led to this lawsuit are unquestionably tragic — an accidental fatal shooting during an officer training session. But the Constitution does not afford a cure for every tragedy.

The District Court’s decision was reversed.  It was noted that the plaintiff was also pursuing a claim in State law.

Gorman v Sharp (2018), US Fifth Circuit Court of Appeals, 6 June 2018.



Bad weather can be murder

What happens when a civilian is conscripted into police work?

On 13 March 2011 Kristine Constantino phoned the California Highway PAtrol from her home in Kettenpom, California.  She whispered “help me” and that she lived at the end of the Kettenpom airstrip.  The dispatcher formed the impression that she was trying to avoid being overheard.  The message was passed to the dispatcher of Trinity County Sheriff’s Office, who tried to call Constantino without success.  The call for help was passed to the Office’s Corporal Ron Whitman.

Christopher Richardson and Kristine Contantino (Image from here)

Apparently because Kettenpom is a remote town, Whitman called Norma Gund who lived near the airfield.  He asked her to do a welfare-check on Constantino.  He said that Constantino has called 911 for help, which probably related to bad weather.  He did not advise her that the caller was whispering or trying not to be overheard.  Gund and her husband went to Constantino’s home.  Constantino and her partner Christopher Richardson had immediately before been murdered by Tomas Gouverneur, who was still at the scene and attacked the Gunds, causing significant injuries (the full sequence of events is detailed in an article from radio station KMUD).

The Gunds sued Trinity County as Whitman’s employer.  Thye alleged that he had negligently misrepresented that the call for help was likely weather related and did not suggest a crime in progress.  The County applied to dismiss the claim  On the grounds that the Gunds’ only remedy was in workers’ compensation: Labour Code §3602.  California’s Labour Code §3366 provides that:

… each person engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person … engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division.

The trial court agreed and dismissed the claim: Gund v County of Trinity (Trinity County Superior Court, Scheuler J, 27 April 2014, unreported).  The Gunds appealed.

The trial court’s decision was affirmed by the Third District Court of Appeal.  The Court noted that if Corporal Whitman had responded to Constantino’s call for unspecified ‘help’, he would have been engaged in active law enforcement because

any 911 call seeking unspecified help presents a risk of criminal activity.  Since the deputy would have been engaged in active law enforcement had he responded, plaintiffs were engaged in active law enforcement when they responded to the 911 call on his behalf — regardless of the deputy’s misrepresentations to plaintiffs that the call was likely weather-related and omission of facts that the caller whispered for help, was disconnected, and did not answer a return call. Even though plaintiffs were unaware of the facts suggesting potential criminal activity and felt lulled into a false sense of security by the deputy’s misrepresentations and omissions, plaintiffs still knew they were responding to a 911 call for help, the nature of which was not certain.

It followed that §3366 applied.  Because the Gunds could claim workers compensation, they had no common law damages claim.

Gund v County of Trinity (2018) __ Cal.App.4th __.

Eight years. One second.

It’s impressive he was even functioning.

In March 2017 a Melbourne truck driver was about to end an eight year ice binge.  He didn’t mean to.  He had been swerving erratically on the Calder Freeway.  The cars ahead were slowing for roadworks that morning.  He reacted, at most, a second before he crashed into the back of boilermaker Kari-Pekka Maunus’ utility, killing the 49-year old boilermaker.  He was charged with causing death by culpable driving.

Image from here

The Crimes Act 1958 (Vic.) §318 relevantly provides that

(1) Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both.

(1A) The standard sentence for an offence under subsection (1) is 8 years.

(2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle … whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.

The charge was dealt with in the Melbourne County Court. Judge Wraight imposed a sentence of six years imprisonment with a minimum term of four years

Director of Public Prosecutions v Templeton (2018) Herald Sun, 2 June 2018, p.31.

In God’s name, why?

Matthew Tirado suffered from severe intellectual disabilities and autism  At the age of 17 years, he was 5’9″ tall but weighed only 84 pounds (38 kgs).  His 34 year old mother* had (apparently to prevent him stealing food) screwed all of the cupboards closed and locked the refrigerator.  So severe were the restrictions that at the end the Connecticut teenager was reduced to foraging in the rubbish for food and to consuming oils and condiments.  On 14 February 2017 he died of fatal child abuse syndrome with dehydration and malnutrition.  His mother took no steps to secure medical help for him.  She was charged with first degree manslaughter.

The 2005 Connecticut Code §53a-55 relevantly provides that

A person is guilty of manslaughter in the first degree when … under circumstances evincing an extreme indifference to human life, [s]he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

The defendant pleaded guilty in the Hartford Superior Court.  Her lawyer noted that she was herself intellectually limited and had grown up in circumstances of neglect.  Judge Baldini noted that the defendant had “failed to provide her son the basic necessities of life”.  Painfully, she observed that “Ms Tirado’s intellectual limitations and becoming a parent at a very young age coupled with her son’s significant cognitive impairments created a perfect storm for Matthew’s untimely death”

Pursuant to a plea agreement the Court sentenced her to 17 years imprisonment, six years of which was suspended, with five years probation.

State v Tirado (2018), NY Times, 5 June 2018; Hartford Courant, 5 June 2018.


* Alert readers will note the age difference.  Matthew’s mother was impregnated at the age of 15 by then-40 year old Pedro Gomez.  In subsequent news reports, Gomez claimed to be upset at Matthew’s fate despite having left the defendant to raise her child as a single mother.  My views on that point are not fit to be put in writing.

Sick. Sicker.

Illness leading to injury.  No winners here.

Between September 2016 and March 2017 a disabled 37 year old man in Melbourne, Australia, made a number of phone calls to mothers.  He posed as an emergency responder.  He told each one that her daughter had been killed in a road accident.  Each one was deeply shocked by the phone call.  One was later diagnosed with depression and Post-Traumatic Stress Disorder.  Another was left with sleep problems.  The offender was charged with three instances of stalking and of recklessly causing injury, and also two instances of using a carriage service to menace, harass or cause offence.


Image from here

The Crimes Act 1958 (Vic) §21A relevantly provides that –

(1) A person must not stalk another person. Penalty: Level 5 imprisonment (10 years maximum).

(2) A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes … contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever; … with the intention of … arousing apprehension or fear in the victim for his or her own safety or that of any other person.

(3) For the purposes of this section an offender also has the intention to … arouse apprehension or fear in the victim for his or her own safety or that of any other person if … the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear …

The matter was dealt with before Judge McInerney in the Melbourne County Court.  It was put on his behalf that he had significant mental problems including autism, a socialization disorder and Tourette’s syndrome.  The Court said that the offences were bizarre, heinous and grievous, but that the offender’s illness required his punishment to be moderated.

The offender was sentenced to serve three months imprisonment in addition to the roughly 15 months he had spent on remand.  He was ordered to complete a community corrections order including mental treatment on release.

Director of Public Prosecutions v Zillner (2018) The Age, 7 June 2018, p.11

Russian Warfare: Comedy & Death

Douglas Adams has one of his characters say ‘I’ve seen the future. It’s the same as the present, but with better gadgets’. This also applies to breaches of the laws of war.

On 25 May 2018 the representatives of Australia and the Netherlands at the United Nations presented a statement to the representative of the Russian Federation. The statement concerned the downing of Malaysian Airlines flight MH17. It noted that

An investigation into the causes of the downing of flight MH17 was carried out by the Dutch Safety Board (DSB)…. The report of the DSB has revealed that the aircraft was shot down with a missile launched from a BUK-installation from the territory of Ukraine in an area that was under the effective control of separatists…. The Joint Investigation Team announced on 24 May 2018 its conclusion that the BUK-installation belonged to the Russian Federation Army’s 53rd Anti-Aircraft Missile Brigade.

Based on these facts, Australia and the Kingdom of the Netherlands consider that the Russian Federation, through its role in the downing of flight MH17 on 17 July 2014, has breached several obligations under international law …. That responsibility gives rise to legal consequences for the Russian Federation to …[p]rovide Australia and the Kingdom of the Netherlands full reparation for the injury caused by these internationally wrongful acts.

It remains to be seen whether reparations of any sort will be forthcoming, although under the ‘bearish’ United Russia government one would not be hopeful. That said, a long-ago international case might give room for hope.

By Source, Fair use,

In the early Twentieth Century Russia and Japan went to war. To bolster its Pacific fleet, the government of Tsar Nicholas II dispatched part of its Baltic fleet around the world. The fleet was commanded by Admiral Zinovy Rozhestvensky, although early on he seems to have relinquished command to the Three Stooges: before the fleet had left European waters – and despite being 20,000 miles from Japan – it had fired on Danish and German fishing boats and merchant vessels from Sweden and France, believing all of them to be Japanese warships, carefully navigated a non-existent minefield, and observed Japanese military balloons (apparently the Three Stooges brought along some hallucinogenic drugs).

Farce turned to tragedy on the night of 21-22 October 1904 when the fleet encountered a group of British trawlers, concluded that they were Japanese torpedo boats and opened fire. One trawler was sunk and four others damaged. Two fishermen were killed and six were wounded (one of whom later died of wounds). Presumably for comic relief, the Russian fleet also concluded that two of its own cruisers were Japanese warships and opened fire on them as well.

An International Commission of Inquiry was established to investigate the incident. Its ruling concluded that

[T]he vessels of the fishing fleet did not commit any hostile act, and the majority of the commissioners being of opinion that there were no torpedo boats either among the trawlers nor anywhere near, the opening of fire by Admiral Rojdestvensky [sic] was not justifiable. … [However] Admiral Rojdestvensky personally did everything he could … to prevent trawlers, recognized as such, from being fired upon by the squadron. … Nevertheless, the majority of the commissioners regret that Admiral Rojdestvensky, in passing the Straits of Dover, did not take care to inform the authorities of the neighboring maritime powers that, as he had been led to open fire near a group of trawlers, these boats, of unknown nationality, stood in need of assistance.

Following this finding, the Russian government paid compensation of £66,000. That sum would have a modern value of £7,629,032.26.

The Dogger Bank Case (Great Britain v. Russia), 2 Am. J. Int’l L. 931 (Int’l Comm’n of Inq., 1905).

Good news for a change

A recent amendment to the Transport Accident Act 1986 (Vic.) has made access to medical expense benefits easier for road accident victims.


On 13 February 2018 the Compensation Legislation Amendment Act 2018 (Vic.) received royal assent. Section 4 of the Act repealed s.43(1)(b) of the Transport Accident Act 1986. This disposed of the medical expense excess (currently $651.00) which previously had to be paid before the Transport Accident Commission would take on medical expenses when a person was not made a hospital in-patient.

As a result of this amendment, sub-ss. 43(1A), (1B) and (1C) of the Transport Accident Act 1986 became redundant and were also repealed.

This change applies to people injured in accidents occurring on or after 14 February 2018.

In visual form the amendments were as follows –

43 Liability for losses in first five days etc.

(1) The Commission

(a) is not liable to pay compensation under this Part to an earner injured as a result of a transport accident in respect of loss of earnings during the first five days after the accident or after the injury first manifests itself, whichever last occurs, in respect of which, or any part of which, the earner suffers any loss of earnings as a result of, or materially contributed to by, the injury. ; and

(b) subject to subsections (1A), (1B) and (1C), is not liable to pay the first $389 (as varied from time to time in accordance with section 61) of the reasonable costs of medical services received because of an injury as a result of a transport accident.

(1A) The Commission is liable to pay the whole of the reasonable costs of medical services received by a person because of an injury as a result of a transport accident if the person dies as a result of that injury .

(1B) The Commission is liable to pay the whole of the reasonable costs of medical services received by a person after that person has been an in-patient for 1 day because of an injury as a result of a transport accident .

(1C) For the purposes of subsection (1), a claim by a person injured as a result of a transport accident and a claim by any member of the immediate family of that person who is also injured as a result of the same transport accident is to be treated as if it were one claim .

(2) If, by reason of subsection (1)(a), the Commission is not liable to make a payment to an earner in respect of loss of earnings, the Commission may make such a payment if it is satisfied that the earner would suffer acute financial hardship if a payment were not made.

This is a significant improvement to a long standing issue with the Transport Accident Act which from time to time delayed claimants receiving necessary assistance.

What part of “shall not” don’t you understand?

It shouldn’t be difficult should it?  You just have to avoid acting like a tool.

Image credit: Ondrick Larsen Lawyers

In 2017 an intervention order was served on a man in Portland, Australia.  He was forbidden from physically or verbally intimidating a particular other person.  On 13 April 2018 he was at that person’s home when an argument saw him grab their chair and then verbally abuse them.  The offender was charged with breaching an intervention order.  The report leaves unclear what sort of intervention order was imposed.  However, the Family Violence Protection Act 2008 (Vic.), §123(2) provides that breaching a family violence intervention order is punishable by up to two years imprisonment.

The defendant was presented for trial in Portland Magistrates Court where he pleaded guilty.  He submitted that a series of quarrels combined with a failure to take medication had lead to the actions breaching the order.  Toose M imposed a fine of $1,200.00.

Police v Kennett (2018) Portland Observer & Guardian, 2 May 2018, p.5