Anzac Day: Meet Jimmy

Today is a non-law post.  I wrote this for Anzac Day 2016 and I think it bears re-sharing today.  

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Tomorrow is Anzac Day.  For the benefit of non-Australian readers, Anzac Day commemorates 25 April 1915, when Australian, New Zealander, French and British troops landed on the Gallipoli peninsula during the First World War.  It’s also the principal day for commemorating Australia’s veterans of all conflicts.

Meet Jimmy.  Or more properly, Lance-Sergeant James Martin Voss, 3rd Battalion, Australian infantry.  The War Memorial’s roll of honour states that he died of wounds on 17 October 1916, aged 21 years.  He was a farmer by profession, from Burrumbuttock in New South Wales.  And he was my grandmother’s brother.  She told me once that she remembered exactly where she was when she last saw him – under a tree not far from the family’s farm – and I remember that she called him “Jimmy”, the nickname he must have had as a boy.

He enlisted on 26 August 1914, 22 days after Australia entered the war.  His service record says that he died in Belgium – probably at Ypres – of a gunshot wound to the head.  Reading between the lines, I suspect that the wound was self-inflicted.  Who could blame him if he decided to choose the time and manner of his death?  Not every wound on a soldier is physical.

Image from here

There’s a good argument that the Great War made possible such peace and security as exists in the world today.  But ‘big ideas’ like this seem empty in the face of the pain and wasted life of a young man.  The only thing that can ease human pain is human joy and human hope.  I’d like to hope that before he left this world, Jimmy had the chance to know some of the poilus – the farmers and countrymen like himself who were the backbone of the French infantry – and that he found in them kindred spirits.

Image from here

I’d like to think that Jimmy would have been comforted to know that his sister became a nurse and a midwife, and preserved and birthed life in a world he had seen blasted by death.  I don’t think that his sister ever stopped missing him, from their farewell in 1914 until her own death 80 years later.  Perhaps it would have been a comfort to her to have seen the care lavished on the Lijssenthoek Military Cemetery by the Belgian people.  And perhaps it would have been comforting to both of them to know how beautiful Ypres would become once the guns fell silent and life returned.

Image from here

 

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.

pexels-photo-3952232.jpeg
Photo by cottonbro on Pexels.com

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
Photo by Pixabay on Pexels.com

What is a dog?

Labradors like food.  The last one we had at the farm would eat anything his powerful jaws could grind up. He only came to grief when he tried it on a brown snake, with sadly fatal consequences (R.I.P. Roly).

So I was interested in a story that landed in my inbox this week.  According to 101.5 WPDH, Shannon Walton of Hopewell Junction, NY, fed her Labrador/beagle cross with “Blue Wilderness” dog food because it was advertised as “inspired by the diet of wolves.”  Her dog put on substantial weight and was diagnosed with diabetes and canine obesity.

The lawsuit claims that Blue Buffalo was deceptive in their advertising because the food contains “high levels of dietary carbohydrates, which are neither healthy for dogs nor a meaningful part of the diet of grey wolves.”

The Hopewell Junction woman is seeking a class-action lawsuit which she says could reach over $5 million.

This left me wondering what, specifically, such a claim would be for.  Strictly speaking, her dog is an item of property.  Presumably, Ms Walton would be entitled to the diminished value of the dog, which I suppose would be a few hundred dollars at most.  On the other hand, if the dog is viewed as part of her family, perhaps harm to it is something which the food manufacturer should reasonably have foreseen could cause mental harm to a person of ordinary fortitude (Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317).  If this is the case, then the claim may have significant value.  But, does this tend to treat Fido, not as an animal, but rather as a small human in a dog-suit?  And is this something the law should be doing?

What cheerleaders say on Twitter

Social media has become a pit for the unwary.  Pretty well every comment or ‘like’ you hand out has the potential to come back and bite you, either in your career or in the form of a headline.  Or in the case of a cheerleader, in a captaincy.

San Benito High School in Texas seems to have a strong and successful cheer team.  In early 2017 a young lady identified as “ML” was appointed as head varsity cheerleader.  A few weeks later, she was called to a meeting with the team coaches where she was stripped of her post and dropped from the team.  The coaches had found her Twitter feed, which they considered to have been “inappropriate”.  In particular, they were alarmed that she had liked posts created by others saying –

  • “Imma show my mom all the snaps2 from girls partying for spring break so she can appreciate her lame ass daughter some more,”
  • a tweet about braiding hair containing the acronym “lmao,”
  • a tweet containing an image of a text-message conversation between a mother and a daughter, in which the word “fuck” is used twice
  • “I love kissing lmao,”
  • “i [sic] don’t fuck with people who lowkey try to compete with/ out do me,”
  • “I fucking love texas [sic] man, it’s so beautiful and just overall great! Why would anyone want to leave Texas[?],”
  • “I love her [third-party Twitter user] I FUCKING LOVE YOU SO MUCH AND YOU DONT [sic] EVEN KNOW IT LIKE BITCH I HOPE YOU DO GREAT SHIT IN LIFE I BELIEVE IN YOU,”
  • a tweet from a Twitter account entitled “Horny Facts™,” which states, “bitch don’t touch my . . .”4

In addition, she had retweeted a post from “Bitch Code” and replied in the affirmative to the question “Did pope split you in half??”

The plaintiff, by her mother, brought proceedings alleging a violation of her free speech rights.  Statute 42 USC §1983 relevantly states that –

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects … any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ….

The claim was dismissed at first instance on the grounds that the defendants were entitled to a qualified immunity.  The plaintiff appealed to the 5th US Circuit Court of Appeals.

San Benito HS
Image from here

The Court noted that a defendant will be entitled to qualified immunity where their action “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”.  Immunity will be made out where there has been insufficient case law to warn a defendant that their acts violate the Bill of Rights.

The Court then proceeded to review the available case law on the free-speech rights of school pupils.  It concluded that at the time of ML’s dismissal, the case law on out-of-school speech had not established clear boundaries.  The Court took the opportunity to sum up the available case law in the hope of offering guidance to school administrators –

First, nothing in our precedent allows a school to discipline nonthreatening off-campus speech simply because an administrator considers it “offensive, harassing, or disruptive.” …. Second, it is “indisputable” that non-threatening student expression is entitled to First Amendment protection, even though the extent of that protection may be “diminished” if the speech is “composed by a student on-campus, or purposefully brought onto a school campus.” …. And finally, as a general rule, speech that the speaker does not intend to reach the school community remains outside the reach of school officials. ….  Because a school’s authority to discipline student speech derives from the unique needs and goals of the school setting, a student must direct her speech towards the school community in order to trigger schoolbased discipline.

The court declined to say whether the case at hand actually had breached these principles.  It concluded that “there was no clearly-established law that placed M.L.’s rights beyond debate at the time of” her dismissal.  As such, the claim of immunity was made out.  The appeal was dismissed.

Longoria v San Benito Independent Consolidated School District (US Ct of App. 5th Cir., King, Higginson and Duncan JJ, 4 November 2019, unreported)

Spirit Airlines, Weightlifting and Mail

My co-worker and good friend Sarah has recently completed a trip to the United States.  Unfortunately, thanks to the sterling work of Spirit Airlines, she returned with only the clothes she was wearing and without her weightlifting gear.  She is, not unreasonably, just a little miffed.

Sorch

Long time readers may recall that I posted a note on Nicol v Air Maroc, a decision from the High Court of Sierra Leone in which an airline’s liability for the costs of lost luggage was explored.  No doubt, if all else fails, suitable litigation under the Warsaw Convention will set things to rights.  But this got me thinking: “I’m an old-fashioned sort of solicitor.  Is there an old-school way of dealing with this?”

There is, and it comes to us out of a foggy night on 5 April 1900, just off of Table Bay in South Africa.  The SS Winkfield, a troopship, collided with SS Mexican, a ship carrying passengers, freight and mail.  No lives were lost, but a quantity of mail went down with the Mexican.

SS Mexican
SS Mexican (Image from here)

Inevitably, litigation began for the value of the lost mail, lead by the Postmaster-General as bailee of the items.  Damages were agreed at £32,514, 17s 10d (current value £3,925,832.83 / AU$7,439,488.97 / US$5,052,959.06).  At first instance the claim was rejected on the grounds that, as bailee, the Postmaster had no liability for loss of the mail and therefore no standing to sue.  The Postmaster appealed.

Cockerham, Charles, active c.1900-1935; SS 'Winkfield' Bound for South Africa with Troops, July 1890
SS Winkfield (Image from here)

The English Court of Appeal (Collins MR, Stirling and Mathew LJJ) stated decisively that the Postmaster, being possessor of the mails, had a perfect right to sue for their loss.

[T]he root principle of the whole discussion is that, as against a wrongdoer, possession is title.  The chattel that has been converted or damaged is deemed to be the chattel of the possessor and of no other, and therefore its loss or deterioration is his loss, and to him, if he demands it, it must be recouped.

The Court also made an observation which would be on point for my friend Sarah if Spirit Airlines find they cannot come up with her belongings in a timely way.

[T]he obligation of the bailee to the bailor to account for what he has received in respect of the destruction or conversion of the thing bailed has been admitted so often in decided cases that it cannot now be questioned.

Loss of baggage by an airline being determined by case law from before the age of flight?  Sounds like fun to me!

The Winkfield [1902] P 42

Injured … but not.

The law of workers’ compensation has always had a somewhat tense relationship with medicine (one thinks of the bitter observation by a doctor on the Australian epidemic of ‘repetitive strain injury – “The Australian RSI epidemic burnt out … because in the end doctors stopped certifying as physically injured large numbers of uninjured workers”).  Nevertheless, from time to time the law has been open to accepting perhaps-novel medical assessments without murmur.

Mr Eaves was a colliery worker.  While at work in May 1905 he suffered a foot injury and sought compensation under the Workmen’s Compensation Act 1906.  The claim was accepted and payments of 18 shillings a week were commenced (in today’s value, £107.50 or $195.30 AUD).

Cambrian Collieries, Clydach Vale (Nr Tonypandy, Rhondda) South Wales 1905
Cambrian Collieries, Clydach Vale, South Wales 1905 [from here]
In January 1909 the matter was reviewed before a County Court judge.  His Honour accepted the medical evidence that the worker had made a complete physical recovery but had developed a mental condition whereby the injured leg had no sensation and was completely unable to bear any weight.  He was considered to be suffering from a “traumatic neuraesthenia”.  There was no evidence of malingering.  The judge found that because the worker was physically capable of work, his compensation should be reduced to a penny a week (today, 48 pence / 0.88c AUD).  The worker appealed.

In the Court of Appeal, Cozens-Hardy MR stated that

The effects of an accident are at least twofold: they may be merely muscular effects – they almost always must include muscular effects – and there may also be , and very frequently are, effects which you may call mental, or nervous, or hysterical, whichever is the proper word to use in respect of them.  The effects of this second class, as a rule, arise directly from the accident from which the man suffered just as much as the muscular effects do, and it seems to me entirely a fallacy to say that a man’s right to compensation ceases when the muscular mischief is ended, though the nervous or hysterical effects still remain.

Fletcher-Moulton and Farwell LJJ reached similar conclusions.  The appeal was allowed.

An interesting footnote to the case is that Mr Eaves was represented by very distinguished senior counsel, Rufus Isaacs KC, whose later career would include the posts of Lord Chief Justice of England, Ambassador to the United States and Governor-General of India.

Eaves v Blaenclydach Colliery Co Ltd [1909] 2 KB 73

Evidence and Confession(al)s

It’s been a long week, and in the midst of it came the news that a Bill with a bland title had been passed by the Legislative Council. In due course, the Governor will provide royal assent and it will become law.

The bill in question is called the Children Legislation Amendment Bill 2019. It amends a number of Acts, but the amendments that have drawn most attention relate to the Children, Youth and Families Act 2005 (CYF Act) and the Evidence Act 2008.

Image from here

The text of the bill can be found here. Once its amendments are made, §182 and §184 of the CYF Act will relevantly read as follows –

Section 182 – Who is a mandatory reporter?
(1) The following persons are mandatory reporters for the purposes of this Act— …
(ea) a person in religious ministry;… .

Section 184 – Mandatory reporting
(1) A mandatory reporter who, in the course of … carrying out the duties of his or her office … forms the belief on reasonable grounds that a child is in need of protection … must report to the Secretary that belief and the reasonable grounds for it as soon as practicable …

Penalty: 10 penalty units. …

(2A) To avoid doubt, a person is not exempt from the requirement to report under subsection (1) merely because the information would be privileged under section 127 of the Evidence Act 2008. …

This amendment dovetails with §327 of the Crimes Act 1958.  This section relevantly provides that

Section 327 – Failure to disclose sexual offence committed against child under the age of 16 years 

(2)     … a person of or over the age of 18 years (whether in Victoria or elsewhere) who has information that leads the person to form a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years must disclose that information to a police officer as soon as it is practicable to do so, unless the person has a reasonable excuse for not doing so.

Penalty:     3 years imprisonment. …

This would be fairly unremarkable, but for the amendments to the Evidence Act.  Post-amendment, §127 of that Act relevantly reads as follows –

Section 127 – Religious confessions
(1)     A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the
contents of a religious confession made, to the person when a member of the clergy.

(2)    Subsection (1) does not apply— …
   (b)        in a proceeding for an offence against section 184 of the Children, Youth and Families Act 2005; or
    (c)    in a proceeding for an offence against section 327(2) of the Crimes Act 1958. …

(4)     In this section, “religious confession” means a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned.

The effect of this is tolerably clear: in cases falling under the CYF Act or the Crimes Act, a priest may now be prosecuted for failing to maintain the seal of the confessional.  In these cases, a cleric is to be obliged to violate a sacrament and to excommunicate himself (a person who dies in such a condition has no hope of salvation).  While the Minister who steered the legislation through Parliament insisted it applied to a range of faiths, it’s unlikely many people think it was aimed at anyone except Catholics:

For better or worse, §116 of Australia’s Constitution offers clerics little protection.  In relevant part, that section says that “The Commonwealth shall not make any law … for prohibiting the free exercise of any religion”.  Leaving aside whether s.116 applies to State legislatures, the High Court long ago emptied the section of most of its force.  As Griffith CJ put it in Krygger v Williams (1912) 15 CLR 366

To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of sec. 116, and the justification for a refusal to obey a law of that kind must be found elsewhere.

I remember my long-ago lecturer in Criminal Law went through a thought experiment where he demonstrated that law of even the most 1984-esque type could be rationalised as being for the protection of children.  One imagines he may now feel vindicated.

What did police not see?

An interesting case was mentioned on the ABA Journal’s website recently.  The case concerns litigation against the US Federal government for failing to identify that the perpetrator of the Charlestown massacre was not able to purchase a firearm.

The article notes that

A federal appeals court has ruled that the federal government can be sued for failing to uncover information about the Charleston, South Carolina, church shooter during a background check that would have barred him from being able to buy a gun from a licensed dealer before the mass shooting. …

The review was run by the FBI’s National Instant Criminal Background Check System. … The government reviewer contacted the wrong police department for records of Roof’s arrest because of a misstatement in a government database. …

If the government reviewer had been using discretion and decided against obtaining the arrest report, the government would be immune, the 4th Circuit said. But the examiner instead was required to get the report from the arresting agency under internal operating procedures that remove any discretion from reviewers. “The government can claim no immunity in these circumstances,” the 4th Circuit said.

This poses an interesting light on the broad principle that the state has only a limited duty to detect and prevent crime.  The law has traditionally been unwilling to be an armchair-quarterback to decisions made by police in exercising their discretion as to discharging their role: see Hill v Chief Constable of West Yorkshire [1989] AC 53.  In this case, however, there was expressly no discretion and so the failure by the reviewer would have lacked a common law immunity.  As a result, one can infer that the more prescriptive a government (or police force) is about its members’ duties, the less likely it is that a court may need to adopt the wide approach to liability taken by (say) South African law in Van Eeden v Minister of Safety and Security, 2003 (1) SA 389 (SCA).