Posted on by Stephen Tuck

Quo usque tandem abutere, Catilina, patientia nostra?

Shoutout to my friend and New Orleans lawyer Brett Bonin who identified the flag of Tuvalu! Honourable mention to David Coale who law-blogs over at 600 Camp who deduced that it wasn’t Texas (being kinda the opposite of a Lone Star flag).

How long is too long?

Tuvalu is not a big country. Its legislature runs to some 15 people and there are no political parties. Section 62(3) of the Tuvaluan constitution specifically provides that the number of government ministers (aside from the Prime Minister) cannot be greater than one half of the Parliament’s membership.

On 6 January 2014 Leneuoti Maatusi MP was appointed Acting Minister for Health. He remained in that role as of 7 March 2015. His appointment brought the number of ministers to eight.

TV Parl
Parliament House, Tuvalu (Image from here)

Other Members of Parliament applied to the High Court of Tuvalu for a declaration that Mr Maatusi’s appointment was unconstitutional and therefore void. In response an argument was made that his appointment under §69(1)(b) operated as an exception to §62(3) –

(1) When—

… (b) a Minister other than the Prime Minister is —

(i) absent from Tuvalu; or

(ii) for any other reason unable to perform the functions of his office,

the Head of State, acting in accordance with the advice of the Prime Minister, may appoint another member of Parliament to perform temporarily the functions of the Minister.

Among other arguments, the appointment was challenged as not being temporary. The Court said (I quote the slightly imperfect phrasing of the report) –

“Temporarily” is a word of inexact meaning. How long is something “temporary” before it becomes permanent? That depends on one’s interpretation: one person’s interpretation may not be another’s.Tot homines, quot sententiae!

A line may be drawn between a something being temporary and it having gone on for so long that no sensible person, could argue that it is still temporary. No need to work out where the line is to do that. Easy to tell which side of the line the something is.

All I need say is that Leneuoti Maatusi’s appointment has long crossed the line and become, to all intents and purposes, permanent. The gentleman’s appointment is against both the spirit and the letter of the Constitution.

The application was granted.

Latasi v Attorney-General (High Court of Tuvalu, Millhouse J, 23 March 2015, unreported)

Posted on by Stephen Tuck

Waddya know, Wal-Mart?

You can find everything at Wal-Mart. Except maybe a sponge.

Leoncio Garcia went to a Wal-Mart store in Houston, Texas at 6:21am on 9 June 2015.  Twenty-five minutes earlier a floor-scrubbing machine operated by a Wal-Mart employee had passed over – and briefly paused at – a point where the floor surface changed from vinyl to tiles.  It was this point where Mr Garcia slipped and fell, suffering a knee injury.  An employee of the store then put a warning cone down on the floor because she saw a liquid at the sit of the fall.

walmart
Image from here

Mr Garcia sued Wal-Mart for his injuries.  Wal-Mart responded that there was no evidence that it knew of the hazard before the accident.  It applied for summary judgment which was granted: Garcia v Wal-Mart Stores Texas LLC (US Dist. Ct SD Tex., Gilmore J, 9 June 2017, unreported).  The plaintiff appealed.

The appeal was upheld by the Fifth Circuit Court of Appeal.  The Court noted that four things must be proved in an occupiers liability claim:

  1. That the owner had actual or constructive knowledge of the hazard.
  2. That the hazard presented an unreasonable risk of harm.
  3. That the owner failed to take reasonable care to reduce or eliminate the risk.
  4. That the risk was the proximate cause of the injury.

Knowledge could be established by (inter alia) showing that the owner had placed the substance on the floor.  Garcia’s case was that there was circumstantial evidence that the fluid came from the scrubber, thereby meeting the knowledge requirement.  Because this was more plausible than Wal-Mart’s alternative explanations, it was appropriate for the factual dispute to be returned to the trial court for decision.

Garcia v Wal-Mart Stores Texas LLC (US 5th Circuit Court of Appeals, 18 June 2018)

Posted on by Stephen Tuck

But it doesn’t *say* that!

A fascinatingly technical decision recently came out of the West Virginia Supreme Court of Appeals.  The case is a good demonstration of the principle expressio unius est exclusio alterius.

William Moran was a Rhode Islander and employed by a construction company in that state.  The company sent him to work on a construction project in West Virginia in January 2012.  While there he died of carbon monoxide poisoning at a hotel.  His wife lodged claims for worker’s compensation in both West Virginia and Rhode Island.  Liability was accepted in both claims, although no benefits were actually paid on the West Virginia claim because the $711.30 weekly benefits which would have been payable were cancelled out by the $765.15 per week payable under the Rhode Island claim.  West Virginia Code §23-2-1c(d) provides that

If any employee or his or her dependents are awarded workers’ compensation benefits or recover damages from the employer under the laws of another state for an injury received in the course of and resulting from the employment, the amount awarded or recovered, whether paid or to be paid in future installments, shall be credited against the amount of any benefits payable under this chapter for the same injury.

Mrs Moran subsequently reached a damages settlement with a number of defendants in connection with her husband’s death. Rhode Island law required her workers’ compensation benefits to be suspended.  The quantum of the settlement was such that the suspension would be greater than her life expectancy.  She then requested reinstatement of her West Virginia claim benefits.  A claims administrator and two review bodies determined that her Rhode Island benefits, though suspended, still cancelled out any West Virginia benefits.  Mrs Moran appealed to the West Virginia Supreme Court of Appeals.

experessio
Image from here

The Court upheld the appeal.  It concluded that the Code intended West Virginian benefits to be payable in a case such as Mrs Moran’s.  The Code applied a credit only for workers’ compensation benefits or damages recovered from the employer.  Absent reference to recovery from a third party, the legislature must have intended the section not to apply to such recoveries.  Further, where payments were suspended, benefits were not being paid and so the section was not engaged.

Because W. Va. Code § 23-2-1c(d) does not provide that suspended benefits awarded under the laws of another state be credited against workers’ compensation benefits awarded pursuant to West Virginia law, it is not the proper role of this Court to create such a credit.

Moran v Rosciti Construction Co LLC (W. Va Sup. Ct App., 4 June 2018)

Posted on by Stephen Tuck

And the Hell with us too.

Over the weekend another woman died in Melbourne.  Laa Chol, a young law student of Sudanese background, was stabbed after being caught up in a fight at a party.  Just as they did after the murders of Jill Meagher and Eurydice Dixon, the usual array of fingerpointing and virtue signalling has begun.  From Facebook –

Male violence is a major “law and order problem” but we never hear Dutton mention that

From an acquaintance of mine –

WE as men need to remind ourselves in everything we do, every step along the journey, that we should not sexually assault or rape women.

When one looks at the pictures of the victims I have mentioned, something in particular stands out:

Laa Chol
Eurydice Dixon
Jill Meagher

Images from here

All young.  All pretty.  All plausibly middle-class.  Now let’s consider the death of Samantha Kelly in 2016.  Kelly was not young.  She wasn’t pretty.  She was an intellectually disabled woman living a down-at-heel existence in regional Victoria when a housemate caved her head in with a hammer*.  Remember the outpouring of community grief?  Neither do I.

Does anyone remember Margaret Maher? Maher was a 40 year old drug-addicted prostitute in northern Melbourne.  Her diet was poor and left her at permanent risk of heart failure.  In 1997 she encountered serial killer Peter Dupas.  As Kaye J afterwards said in his sentencing remarks** –

After you murdered her, you then mutilated the deceased’s body … and left it by the side of a road, in a desolate place, as a disgusting display of loathing for the deceased and contempt for her dignity. Not content with what you had done to her in life, you robbed her of her dignity in death. Those actions are, I consider, an eloquent insight into the unmitigated evil which actuated you to kill Margaret Maher and to behave as you did.

I can’t remember Maher’s death rating a headline until Dupas faced a charge of murder.

Nor has there been much public reaction to the death of another 40 year old working girl, Tracy Connelly, in whose death the Victorian Coroner recently issued a finding***.  Connelly sometimes conducted business in a van owned by her and her partner.  And on the night of 21 July 2013 she died in that van, stabbed repeatedly until the knife passed through her left eye and into her brain.  Her killer has not been located.

May I suggest that the difference in response has much – perhaps everything – to do with class and appearance?  It appears much easier for those of us who are articulate and in control of our lives to  care for the pretty, the popular, and those from our own class.  No doubt people will say that of course the lives of the working class and underclass matter greatly.  But the difference in responses will remain the same, and so will the doubt about motivation.  Facta non verba.

Some people get bent out of shape at the idea of accusing all men of being violent.  I don’t.  The response is too narrow.  Our society has decided some lives deserve less mourning because the victims were faceless or voiceless?  If so, then the hell with all of us.

===========================

* He is now serving 22 years for murder: R v Arthur (2018) Bendigo Advertiser, 28 February 2018.

** R v Dupas [2004] VSC 281

*** In the Death of Tracy Anne Connelly (Coroners Court of Victoria, Hinchey C, 16 July 2018, unreported)

Posted on by Stephen Tuck

Didn’t do nuthin’

No wrong without a remedy.  No remedy without a wrong.

In the early hours of 3 March 2013 Kaitlyn Johnson was a passenger in a pickup truck driven by her then husband.  At about 2:30am he fell asleep.  The vehicle left the road, travelled some distance in a roadside ditch and hit a concrete embankment that had been build by a farmer in 1972.  Johnson suffered serious injuries.

Johnson
Image from here

Johnson issued proceedings against Humboldt County in the Iowa District Court for that County.  She alleged that the county had negligently failed to cause the embankment to be removed.  The defendant raised a defence under the public-duty doctrine.  The trial court dismissed her claim: Johnson v Humboldt County (Iowa Dist. Ct, Stoebe J, 23 September 2016).  Johnson appealed.

The Iowa Supreme Court noted that under the public duty doctrine, when a duty is owed to the public generally, no duty exists to an individual member of that group.  A breach of such a duty is not actionable unless the plaintiff can show a special relationship between the relevant government agency the the plaintiff.  The court concluded that the public-duty doctrine controlled the case:

Any duty to remove obstructions from the right-of-way corridor adjacent to the highway would be a duty owed to all users of this public road. It would thus be a public duty.

Johnson raised a number of reasons why the public-duty doctrine should not apply.  One of the arguments was particularly interesting.  She argued that the public-duty doctrine could not be raised when a claim was brought under the Iowa Municipal Tort Claims Act §670.2. The section provides that “every municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their
employment or duties”.  The court rejected the argument:

Johnson erroneously equates immunity (as waived by the Iowa Municipal Claims Act) with the common law public-duty doctrine. … We have said, “Unlike immunity, which protects a municipality from liability for breach of an otherwise enforceable duty to the plaintiff, the public duty rule asks whether there was any enforceable duty to the plaintiff in the first place.”

The District Court’s decision was affirmed.

Johnson v Humboldt County (Supreme Court of Iowa, 8 June 2018)

Posted on by Stephen Tuck

Probably not Grandpa Simpson

He was probably an A-hole even before he got sick.

Kymberli Gardner worked at the Plaza Community Living Centre from 2012-2015.  From 2006-2014 a certain elderly man was a resident of the home.  His medical conditions included dementia, traumatic brain injury, Parkinson’s disease and personality disorder with aggressive behaviour. He had a history of showing violence (including sexual violence) to patients and staff.

Abe Simpson.jpg
Image from here

Gardner was repeatedly the subject of the man’s attentions. Her employer made only minimal and ineffective steps to manage him. She reached breaking point in a final incident of assault on her and two other nurses.  She refused to provide further care to him.  She sought medical care for her injuries and lodged a workers compensation claim. On returning to work her employment was terminated. As a result of a subsequent incident the patient was sent to an all-male unit elsewhere.

Gardner sued, alleging a hostile work environment and retaliation. The US District Court for Southern Mississippi dismissed her claim: Gardner v CLC of Pascagoula LLC (US Dist. Ct, S.D. Miss., Guirola CDJ, 6 February 2017, unreported).  She appealed.

The 5th Circuit Court of Appeals accepted that Gardner’s experience could constitute severe and pervasive harassment. The employer was not permitted to wash its hands of the resident’s conduct, notwithstanding that he was medically unable to act appropriately.

Inappropriate comments and incidental contact are sufficiently common behaviors among patients with reduced cognitive ability that it is not objectively reasonable for a caregiver to expect they will never happen. In contrast, the facility must take steps to try to protect an employee once there is physical contact that progresses from ooccasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm.

Liability based on the behaviour of someone not a supervisor depended on whether the employer knew or should have known of the hostile environment and took reasonable measures to try to abate it.  The court noted that other care homes had avoided liability by actions like –

  • providing a security escort
  • reassigning the employee
  • offering to remove the patient from the home.

The District Court judgment was reversed and the matter remanded for further proceedings.

Gardner v CLC of Pascagoula LLC (US Fifth Circuit Court of Appeals, 29 June 2018)

Posted on by Stephen Tuck

When Crayons beat Ball Points

This post is my somewhat belated contribution to #PracticeTuesday, and it’s probably most relevant to practitioners in criminal law, personal injury and family law.

One word: pencils.

A few weeks ago I tried with difficulty to conduct a conference with a client which his four year old son.  My office isn’t well stocked with things for children and so I tried to leave him entertain himself with a notepad and a ballpoint.  It wasn’t a success.  I didn’t blame the little tyke of course.  He was bored.  Sometimes being in a lawyer’s office bores me too. Some days, if I wasn’t being paid to be here, I’d arc up myself!

After that appointment, the first place I went was Officeworks to get a packet of good sturdy pencils and a sharpener.  When Mr Bloggs and his son came back to the office yesterday, I googled “lawyer colouring sheets”. This was not a success.  Most of the images were not really age appropriate.  Some were, well, kinda scary:

lawyer-drawing-1
Image from here

Instead, I drew on the other half of my life and googled “State Emergency Service colouring sheets”.  This was much better.  A few mazes and pictures of rescue vehicles kept the client’s munchkin happy for the hour or so of the conference.

Colouring 1
Image from here

If your practice regularly means your clients bring their kids to appointments, never underestimate the value of a $4.00 box of pencils.

Posted on by Stephen Tuck

A tragedy in Paradise

Road accident lawyers sometimes fall into the lazy trap of thinking that because there’s a problem in a vehicle, negligence is a given.  A recent case from the Pacific islands offers a reminder about thinking through causation.

On 12 September 2011, a truck driven by a member of Kiribati Protestant Church on church business hit a young girl who ran across the road.  The accident caused her fatal injuries.  Because of rain, the vehicle was travelling at 20-30 kilometres (12-18 miles) an hour.  The uncontested evidence of the driver was that the child had run in front of the vehicle suddenly.  The police investigation found that the truck’s breaks were defective and had to be pumped to operate.

So Tarawa
South Tarawa, Kiribati (Image from here)

The defendant was charged with dangerous driving causing death: Traffic Act 2002 (Kiribati), §31 –

The driver of a motor vehicle must not drive the vehicle on a road recklessly or in a manner dangerous to persons using the road.

Penalty:

… (c) for an offence causing death – a fine of not more than $2,000 or imprisonment for not more than 5 years, or both.

He was acquitted on the basis that (inter alia) there was no evidence that the defective brakes had contributed to the accident.  There had been no time to brake before impact: Republic v Mikaere (Zehurikize J, High Court of Kiribati, 10 November 2016, unreported).

An appeal was lodged on the basis that the verdict was against the weight of evidence, in particular the “finding that the evidence did not establish that the respondent had driven in a dangerous manner by driving when he knew the brakes to be defective”.

The Kiribati Court of Appeal noted the trial judge’s finding that the deceased had run suddenly in front of the truck and that –

The defective brakes played no part in the accident. The respondent had no opportunity to apply the brakes until after impact. We note that when he did so he stopped 10 metres further on, confirming that he was driving at a moderate speed and was able to brake effectively.

The appeal was dismissed.

Attorney-General v Mikaere (Kiribati Court of Appeal, Blanchard, Handley and Hansen JJA, 16 August 2017, unreported)

Posted on by Stephen Tuck

Ex Africa semper aliquid novi

Nobody really won on 25 July 2005.

In a town in South Africa on the night I mentioned, Mr Shavhani Ramusetheli was shot in what may have been a robbery.  Four men were charged with murder, robbery and attempted murder.  In the Limpopo High Court, one of the men was convicted of murder and aggravated robbery.  The sole evidence against him was an extra-curial statement by one of his co-accused exculpating himself and incriminating the others –

In that statement, the first accused alleged that he was party to a conspiracy involving his co-accused in terms of which it was agreed that they would rob the deceased of his money. He alleged that his role was to point out the deceased’s homestead to the second and third accused whilst the fourth accused’s role was to supply the firearm to be used during the robbery. The appellant drove them to the deceased’s home in a Toyota Venture motor vehicle owned by the appellant’s employer. The first accused said that he was an unwilling participant in this escapade but was compelled to participate for fear of reprisal at the hands of his co-conspirators and in particular the fourth accused. He went on to allege that it was the second accused and the appellant who committed the offences with which they were charged and that the former was the one who pulled the trigger. In his testimony at the trial, the first accused in substance regurgitated the contents of his statement.

Mulaudzi v S (Theron, Petse and Willis JJA, Supreme Court of Appeal of South Africa, 20 May 2016, unreported)

The man with whom we are concerned was sentenced to imprisonment for life for murder and to 20 years imprisonment for robbery: S v Mushweu & Ors (Limpopo High Court, Makgoba AJ, 22 August 2005, unreported.

LP High court
Image from here

The defendant appealed to the Supreme Court of Appeal.  The matter took over a decade to be dealt with, largely for reasons outside the appellant’s control.  Lewis and Saldulker JJA and Mothle AJA noted that the common law principle that

admissions made extra-curially were not to be used against a co-accused. … [S]ince any out-of-court statement by a co-accused would compromise the constitutional right to a fair trial, it should not be admissible against an accused.

The Court upheld the appeal and set aside the conviction.  A verdict of acquittal was entered in its place.

Ndwambi v S, The South African, 20 June 2018.

 

Posted on by Stephen Tuck

The SCOTUS Nomination: Two Antipodean Cents

It seems that every lawyer I know (in the United States or not) has an opinion on who should be nominated to replace Kennedy J on the Supreme Court of the United States.   May I take this moment to offer my own two cents on the matter before President Trump names his nominee tomorrow at 11am AEST?  And incidentally, up until a few years ago, it was, literally, possible in this country to throw in one’s own two cents –

1990 Australia 2 Cents copy
Image from here

It is not overly surprising that a startling amount of commentary from liberals and conservatives has hinged on the likelihood of His Honour’s replacement joining a majority to overrule the decision in Roe v Wade 410 US 113 (1973).  Despite this, it is hard not to feel that many of the commentators are missing the point.  As Mr Justice Scalia observed with a touch of bitterness, the Court’s usual business rarely involves the great moral issues of our time, but overwhelmingly issues that only a lawyer could be interested in: the tax code, the rules of civil and criminal procedure, ERISA and so on.  Moreover, constitutional jurisprudence out in this little colony suggests that assumptions about how this or that judge will decide are as reliable as tosses of a coin.

What do I mean?  In the 1970s the Whitlam government enacted the Senate (Representation of Territories) Act 1973.  The effect of this Act was to enable the Northern Territory and Australian Capital Territory to be represented by two senators each: previously only Australia’s States had been represented in the Senate.  The States objected to this dilution of their voting power on the grounds that it breached the Australian Constitution.  On one hand, §7 of the Constitution stated that –

The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. [emphasis added]

On the other, §122 said that –

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth … and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Which section controlled?  A challenge was brought in Western Australia v The Commonwealth (1975) 134 CLR 201.  The Act was upheld by a majority consisting of McTiernan, Mason, Jacobs and Murphy JJ.  In a distasteful passage (at p.270) Mason J took it upon himself to declare the clear wording of §7 outmoded and that the Parliament’s powers in §122 had (apparently magically) expanded.  Barwick CJ, Gibbs and Stephen JJ dissented.

In the following years the composition of the Court changed: the elderly (generally pro-Commonwealth) Edward McTiernan retired, replaced by the more conservatiuve Keith Aickin.  Fairly predictably, a fresh challenge to the election of Territory senators was brought: Queensland v The Commonwealth (1977) 139 CLR 585.  A successful challenge was a foregone conclusion with the minority from the previous case – Barwick CJ, Gibbs and Stephen JJ – now joined by Aickin J.

Except it wasn’t.  Gibbs and Stephen JJ “flipped their votes” and declined to overrule the earlier decision.  Gibbs J said (at p.599):

No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.

Many reasonable people of good will may well be hoping for the sun to set on Roe‘s case.  They may be disappointed.