I’m looking over my casebook and I’m struck by how active a week it’s been in terms of starting cases. I’ve served or filed –
As Robert Maxwell (didn’t) say –
When I’m feeling in a mood
Someone out there will be sued!
Earlier this year Pope Francis gave an address to the Italian Sports Centre. His remarks included the observation that “[Sport] is a great school, provided that you live it with self-control and respect for others.”. Recently the Supreme Court of Utah had to look at what this means in practice.
A basketball match at a meetinghouse of the Church of Jesus Christ of Latter Day Saints turned a bit ugly when one Judd Nixon was tackled by another player, Edward Clay. The tackle was ruled to be an unintentional common foul, despite which Nixon suffered a serious knee injury.
Nixon brought proceedings seeking damages in the Utah County District Court. Judge Pullan granted a summary dismissal of the case on the grounds that a participant in a contact sport is liable only for the results of a wilful or reckless disregard for the safety of another player. Mr Nixon appealed.
The Supreme Court of Utah dismissed the Appeal. The Court adopted a simpler test which bypassed consideration of the defendant’s state of mind. It expressed the relevant common law to be –
that voluntary participants in a sport cannot be held liable for injuries arising out of any contact that is “inherent” in the sport. Under our rule, participants in voluntary sports activities retain “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” Knight, 834 P.2d at 708. But there is no duty to lower or eliminate risks that are inherent in an activity.
In the circumstances, a grant of summary judgment was appropriate.
Interestingly, the Supreme Court of Utah was essentially the same as that reached by Australian courts in McNamara v Duncan and Smith v Emerson.
An interesting headline popped up in my twitter feed this morning. The Australian had run an article which noted the possibility of litigation against doctors in cases of gender reassignment regret.
Scrutiny of risky medical interventions for “trans” kids will increase with the number of regretful “detransitioners” and lawsuits https://t.co/Z5qWGNQZ74 #Health @australian #AusPol
— Bernard Lane (@Bernard_Lane) August 12, 2019
The article states that –
In Australia, troubled clinicians have urged the federal government to set up an urgent inquiry into the safety and ethics of “experimental” hormone drug treatment of girls as young as nine and boys from 11.
They say trans activism has trumped ethics and obscured the weak evidence for this radical treatment, with the dominant “affirmation model” pushing children down a medical path that can leave them infertile and incapable of orgasm, among other side-effects. …
The US is seeing early signs of what clinicians believe will be a wave of regretful “detransitioners” across the English-speaking world.
This left me wondering what the legal options would be for a litigant. The only caselaw on the subject of which I’m aware is Finch v Southern Health [2004] VCC 44; affirmed as Walters v Finch [2005] VSCA 203. That case, however, dealt only with the time limit for bringing the proceeding. I can find no decision in it post 2004; presumably the matter resolved. In any event, since Finch’s Case the Wrongs Act 1958 has been amended to include §59, which relevantly says –
(1) A professional is not negligent … if it is established that the professional acted in a manner that (at the time …) was widely [but not necessarily universally] accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.
It occurs to me that subsection (2) may make for some interesting litigation if the ‘wave of regretful “detransitioners”‘ becomes a reality. It is hard to be unaware of the fraught nature of public discussion surrounding transgender issues. The danger of being caught in a social media wildfire is unacceptably high for many serious and reasonable research institutions. If this public pressure were to result in a substantial skewing of research, a court may well be asked to determine that the relevant professional opinion is unreasonable.
Stephen the Lawyer 