Time for real talk: Covid Malaise

The longer the Covid-19 situation goes on, the more I find myself affected in ways I did not expect. My own contact with the disease is, as best I know, minimal: friends of friends of friends may have been infected, but that’s all. What I’m noticing however is a kind of “plague malaise” affecting me at work.

Some of this malaise is simple change of routine: checking the news far more than I usually would and not going out at lunch hour unless I particularly have to.  And there’s probably a degree of lassitude after a scorchingly busy couple of months.  But I think what’s also affecting me is the constant sense that things might change at the drop of a hat.  Will movement restrictions suddenly come in so that I can’t leave Melbourne for Shepparton?  Will the city be placed in lockdown, obliging all of us to work from home whether its practical or not?  Will we enter a harsh economic downturn? And – kind of important – will people begin dying in quantity?

The reason I mention this is that I’m wondering if other people in the law are having the same experiences.  These are the things I’m especially noticing –

Firstly, I’m struggling to get work done.  Every task seems to take twice as long as it would normally.  But despite this feeling of my brain being less sharp, I seem more reactive in other ways: today I had to write something involving a police Superintendent; a certain Simpsons reference made me laugh like a drain.

Sometimes I have to make a conscious effort to smile and not to bite the heads off of my co-workers, despite them being people I like and and whose friendship I value.

I find I’m getting more and more “dark”. Usually my thinking music at work is “Rhapsody in Blue”. Currently it’s Saint-Saëns “Danse Macabre”.

Danse Macabre (1493)

Thinking in a sustained way is a challenge. This morning I was trying to read this article on the illegality defence in tort law, and the decision of the High Court in Smith v Commonwealth Oil Refineries Ltd (1938) 60 CLR 141, both of which are relevant to cases I’m handling.  Each is fairly straightforward, although if you watched me knot my forehead up trying to make sense of them you wouldn’t necessarily know that.

Finally, I’m much more indecisive than I usually am.  Last night I was looking over a possible claim for a fellow whose claim is out of time.  I know the case is a dead duck.  Even if on paper it might be possible to finesse a win, I know it’s a pointless exercise.  But could I make up my mind to so advise him?  Nope.  I dictated two-thirds of a rambling, indecisive letter of advice before I gave it up as a bad job.

Now, I don’t think I’m cracking up.  I certainly don’t think I’m at the end of my road as a lawyer!  But I think the current conditions are taking more of a toll on me than I thought they were.  And that has me thinking: has the pandemic had an impact on you, despite not being directly affected by the Covid-19 virus?  If it has, how?

Litigation in the time of Covid

The outbreak of Covid-19 and the proclamation of a pandemic has been making most human activities challenging.  Litigation is no different: at present I’m looking at an array of hearing dates being pushed off into the ether for want of a jury.

For better or worse, the Courts can order matters to proceed as judge-alone trials rather than jury trials.  A short decision from the Supreme Court of Victoria gives some idea what factors will be considered in the time of Covid.

In the matter in issue the plaintiff alleged that he was sexually abused at a Victorian school.  Proceedings were issued in the Supreme Court of Victoria and both parties requested that it be heard by a jury.  The plaintiff subsequently asked for the matter to be heard without a jury, which the defendant opposed.

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Macaulay J noted that –

It is not currently known how long the suspension of jury trials will last. Doing the best I can, I think the projection is likely to be of the order of many weeks not just days. It could be a number of months.

He also noted that the effect of this would be to cause significant delays and extra strain on the Court system.  While the Court had a discretion to dispense with a jury in the interests of justice, a jury would generally decide the matter if a party so requested.  His Honour also observed that the Civil Procedure Act 2010 obliged him to promote the just, efficient, timely and cost-effective resolution of the issues in dispute.

The factors Macaulay J particularly considered relevant to the justice of the case were –

  1. The nature of the plaintiff’s injuries and the impact of the litigation process on him
  2. The “unprecedented nature of the current coronavirus crisis means that it is totally uncertain when this case could be heard again before a jury”
  3. What the case would be heard again it would be competing for a hearing date with many other matters.
  4. There was no factor in the case which would make a judge-alone trial unjust.
  5. The delay and the uncertainty as to a new hearing date stood to cause “real injustice to the plaintiff”.
  6. There was a public interest in cases being dealt with in an orderly, timely and cost-effective way.  This contended against deferring cases in a situation of uncertainty

The Court decided that the matter should proceed without a jury.

Mulquiney v Reynolds [2020] VSC 119

Article published!

I had a bit of luck recently with the publication of an article on liability of landowners for accidents on adjoining roadways.  This goes directly to a matter I have on foot presently.  In case it’s of broader interest, the citation is – ‘Bumps in the Road’ [Winter 2020] ABA Committee News: Automobile Litigation and Staff Counsel 8

A copy is here-

‘Bumps in Road’ (Winter 2020) ABA Cmte Newsl 8

vintage car wrecked grayscale photo
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