Posted on by Stephen Tuck

Litigation and Protests

By now an ocean of ink has been spilt in the wake of the killing* of George Floyd. I haven’t added to it. If anything can be learned from the matters of <a rel="noreferrer noopener" href="http://&lt;!– wp:file {"id":1041,"href":"https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf&quot;} –> <div class="wp-block-file"><a href="https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf">pell-v-r-2020-94-aljr-394</a><a href="https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf&quot; class="wp-block-file__button" download>Download</a></div> Pell v R and <a rel="noreferrer noopener" href="http://&lt;!– wp:file {"id":1042,"href":"https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf&quot;} –> <div class="wp-block-file"><a href="https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf">maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported</a><a href="https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf&quot; class="wp-block-file__button" download>Download</a></div> Maryland v Goodson it’s that public passion does not necessarily translate into legal outcomes.

Be that as it may. There is one side of matters that has had me thinking, which is the potential litigation fallout. In particular, cases where participants in the protests find themselves suffering loss or damage

To the asshole who vandalized my car as my wife and I left the protest… from Seattle

It seems to me someone like the poster above would be in a challenging legal position in seeking compensation from the organisers of a protest, and in particular one where the protest morphed into a riot. The most obvious analogy I can think of is that of sporting injuries, where players are generally taken to consent to the sort of harms (for want of a better word) which are an inherent part of the game (Smith v Emerson). On one view of the matter, the risk of a protest – especially one with angry and upset people – becoming violent may be an inherent danger of demonstrations. On the other hand, the consent posited does not extend to acts done solely with the intention of causing harm (McNamara v Duncan).

Further, deliberate harm is not considered to be susceptible to a defence of voluntary assumption of risk (Sibley v Milutinovic). What might be a more interesting question is whether a person can be taken to have engaged in contributory negligence by remaining after a demonstration has already deteriorated into indiscriminate actions as in the case of Ms Tauss mentioned above.

* I say killing rather than murder quite consciously and deliberately. Not knowing what the elements of murder are in Minnesota law it seems unwarranted for me to pre-judge the matter.

Posted on by Stephen Tuck

Lawyers shouldn’t blither

A story on the lighter side this evening.

I had a matter fixed for hearing yesterday for a nice lady with an injury case. She was quite nervous and so she’d brought three members of her family to the office for the conference pre-hearing. The client and her family are from India originally.

The hearing was to proceed by Zoom, and so we set the client up on a computer in a spare office. As I got everything ready, I was mainly thinking about the half-dozen other things I needed to do so the hearing would proceed smoothly. As I often do when I’m thinking about something else, I was chattering away rather thoughtlessly to avoid an awkward silence. One of the things I had to do was enter the computer login password, which is in part the word “Blackjack”. Without thinking about it I blathered away “so the password is ‘blackjack’ so clearly whoever set it up was either a keen gambler or a fan of the 1960s Country Party, the leader of the party then being called John “Black Jack” McEwen”

Prime Minister John “Black Jack” McEwen (source: Dept of Foreign Affairs and Trade)

The client asked why he was called “Black Jack” and I explained “well, I understand he had dark hair and had quite a dark complexion and …”. It was at this point that I remembered who I was talking to and the fraught ethnic times we’re in and thought in a panic “Oh Lord, I hope they don’t think I was having a go at them!”. I felt my face getting red and I blithered on by saying “and, I understand he favoured dark suits, and he was Prime Minister for a bit too, and … Oh good, we’ve got Zoom up and running!”.

I don’t think the client and her husband were paying much attention to it all, but from the grin on her son’s face he was clearly enjoying watching me trying to dig my way out of the hole I’d dug myself into!

Comic relief can be useful in stressful times; apparently yesterday it was my turn to provide it.

Posted on by Stephen Tuck

Better than Ever

Tonight’s post is a bit of a personal update.

I’m typing this post on the tram home just before midnight. I should feel pretty cranky. At present I’m working flat out and playing catch-up with a number of files. As a result of the sudden departure of a colleague my file load will probably go up by about 30-40%. I left the office tonight at about 11:40pm after settling the memo to counsel for a brief and the index for a court book for a looming worker’s compensation hearing. I don’t expect to be in bed much before 2am. I was hoping to run home from work which, plainly, did not happen.

As I said, I should be cranky. And I’m not. Every day I get to work with a great team of people. I’m doing work that matters, for clients who are genuinely grateful nine times in ten. The puzzles thrown up by the files are challenging and use every bit of my skill and knowledge as a lawyer.

How good is it? If I won the lottery on Saturday I’d still show up for work on Monday morning.