Maybe the railway needed a sign. Something like “Warning: this train may seriously damage your health”.
Ja’Lin Williams was 17 years old when he went with some friends to Whihala Beach in Whiting, Indiana. The group was approached by a police officer who told them they were trespassing and would have to leave. They fled on foot across a set of railway tracks as a train approached. Subsequent video footage showed that the train’s horn and bells were sounding, its lights were on, and that warning lights on surrounding gates were also flashing. Despite this, Williams ran into the path of the train and was struck. He sought compensation from the railway. He and his friends stated that they had neither seen flashing lights nor heard warning bells.
(a) In an action based on fault that is brought against:
(1) one (1) defendant; or
(2) two (2) or more defendants who may be treated as a single party;
the claimant is barred from recovery if the claimant’s contributory fault is greater than the fault of all persons whose fault proximately contributed to the claimant’s damages.
The railway sought and was granted summary dismissal of the claim by the US District Court. Mr Williams appealed.
The US Seventh Circuit Court of Appeals dismissed the appeal. On the video evidence, Williams had had ample warning of the trains approach but had ignored it. Moreover, the Court noted that in Indiana law a train operator has no duty to slow a train on seeing a person crossing, but may generally presume the person will take steps to avoid injury: Ohio & M Railway Co v Walker, 15 NE 234 (Ind. 1888) and New York Cent R Co v Casey, 14 NE2d 714 (Ind. 1938). As a result, the Court of Appeals agreed with the District Court’s conclusion that no reasonable fact-finder could conclude that Williams was 50% or less at fault.
Sports coaches don’t always have the world’s happiest job. Every coach from the New England Patriots down to the Bullamakanka Netball Club gets castigated by supporters when the team fails to win. And when things go really bad off the sporting field, every decision that lead there may be scrutinised as well.
On 27 December 2014 Kristen Galuardi, a pupil of Trumbull High School in Connecticutt, was engaged in a practice at the Fairfield Gymnastics and Cheerleading Academy. It was alleged that the team’s director made two critical decisions in setting up the training. First, one of the team was permitted to train in socks without shoes. Second, the team were practising without spotters. When Galuardi was thrown into the air, her team-mates attempted to catch her. The team-mate wearing socks slipped and Galuardi hit the floor, suffering injuries. She lost consciousness, but (it was alleged) the manager declined to seek medical assistance for her.
Galuardi sued for her injuries. The case settled at the door of the Court for an undisclosed sum. It is always difficult to draw lessons from a case that resolves by agreement rather than judgment; nevertheless, a few points can be made –
The fact that an activity is sporting rather than (say) work-related does not reduce the standard of care on administrators: Wilson v O’Gorman High School (2008).
Coaches should not increase the risks inherent in sports participation, at least outside the range of the ordinary activity involved in teaching or coaching the sport: Honeycutt v Meridian Sports Club LLC (2014).
An interesting case recently came out of the Supreme Court of the Australian Capital Territory (ACT).
Australia’s federation, with its large states and territories, sometimes throws up the odd situation of residents in one state being closer to the capital of a neighbouring jurisdiction than to that of their own. To address this, each State and Territory government has passed legislation giving each state and territory Supreme Court the jurisdiction of each of the others. By way of example, New South Wales’ Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s.4(3) says that “The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters”
Based on this section, Alice Bailey-Brown and her parents commenced proceedings in the Supreme Court of the ACT against the operators of the hospital where she was born. They alleged that the hospital had negligently managed her birth, causing cerebral palsy. The defendant applied to transfer the matter to the Supreme Court of New South Wales (NSW), relying on s.5(2)(b)(ii) and (iii) of the equivalent ACT statute. That section relevantly says –
If —
(a) a proceeding (in this subsection called the relevant proceeding ) is pending in the Supreme Court (in this subsection called the first court ); and
(b) it appears to the first court that …
(ii) having regard to—
(A) whether, in the opinion of the first court, apart from this Act and a law of … another State relating to cross-vesting of jurisdiction, the relevant proceeding … would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and
(B) the extent to which … the matters for determination in the relevant proceeding are matters arising under … a law of that other State or Territory and not within the jurisdiction of the first court apart from this Act and a law of … another State relating to cross-vesting of jurisdiction; and
(C) the interests of justice;
it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;
the first court shall transfer the relevant proceeding to that other Supreme Court.
The defendant pointed out that –
The plaintiffs were residents of NSW.
The defendant was a creation of NSW law with no presence in the ACT.
The alleged negligence occurred in NSW.
The applicable law was that of NSW.
The defendant’s likely witnesses were based in NSW.
The plaintiffs’ treating doctors and expert witnesses were mainly based in NSW.
Despite this, the Court declined to transfer the matter. The test was to balance the competing interests to establish what the interests of justice required. It noted that –
The plaintiffs’ home in Wagga Wagga was much closer to Canberra (2 hours 45 minutes) than to Sydney (about 5 hours).
The lead plaintiff was aged six years, severely disabled and required constant care.
The estimated dutation of the trial was three weeks.
At least some of the plaintiffs’ witnesses were based in Canberra.
It was possible the matter would be heard sooner in Canberra than in Sydney.
Her Honour’s concluding observation was particularly pointed:
it takes but a moment’s thought about the reality for these parents and their severely disabled child in litigating this matter from Sydney as opposed to Canberra to reach the conclusion that NSW is not the more appropriate forum for this matter. Whatever the merit of the case in medical negligence, I am not minded to make their lives any harder than they already are, by forcing them to litigate in a forum that makes it considerably more difficult for them to attend to the needs of their infant plaintiff.
The Court dismissed the application to transfer the case to the Supreme Court of NSW.
Stephen the Lawyer 