Ignoring the Train

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.

train by trees against blue sky
Photo by RAJAT JAIN on Pexels.com

The Indiana Comparative Fault Act provides that –

(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.

Williams v Norfolk Southern Corporation (7th Cir., 19 March 2019)

When cheerleading goes bad

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.

group of cheerleader on green field
Photo by Pixabay on Pexels.com

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).

Note: this report is largely based on the report in the Trumbull Times.

Galuardi v Town of Trumbull and Gymnastics & Cheerleading Academy (Superior Court of Connecticutt, 2019)

Welcome to Canberra

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”

ACT welcome
Image from here

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.

Bailey-Brown v Southern New South Wales Local Health Authority [2019] ACTSC 78

No urge to text

Coulda.  Woulda.  Shoulda.  But didja?

Apple didn’t.

On 12 December 2008 Apple Inc. sought a patent over a smartphone lockout mechanism.  Despite having such a patent, it did not implement it in the iPhone 5.  On 30 April 2014 Ashley Kubiak was driving in Texas when her iPhone 5 received a text message.  She looked down to read it.  The distraction caused her to collide with another vehicle, killing two people and catastrophically injuring a third.  Kubiak was convicted of criminally negligent homicide and sentenced to 180 days imprisonment with five years probation: State v Kubiak, Tyler Morning Paper, 12 August 2014 (4th Texas Jud’l Ct, 2014).

Grim Reaper phone
Image from here

The accident victims and their representatives sued Apple, alleging that it had negligently failed to design the lockout device into the iPhone.  Specifically they argued that receiving a text message causes “an unconscious and automatic, neurobiological compulsion to engage in texting behavior.”  Apple successfully applied to dismiss the claim: Meador v Apple Inc (US Dist. Ct., Schroeder J, 17 August 2017, unreported).  The plaintiffs appealed.

The US 5th Circuit Court of Appeals dismissed the appeal.  The Court noted that it was to apply the law of the forum state as well as that court be determined, without adopting any novel approaches to the law.  In this case the key issue was whether the lack of a lockout device had caused the accident.  That is, would common, practical experience consider it to be a substantial factor.  The Court noted that

No Texas case has addressed whether a smartphone manufacturer should be liable for a user’s torts because the neurobiological response induced by the phone is a substantial factor in her tortious acts. To our knowledge … no court in the country has yet held that, and numerous courts have declined to do so. As such, no authority indicates to us that Texas courts, contemplating reasonable persons and ordinary minds, would recognize a person’s induced responses to her phone as a substantial factor in her tortious acts and therefore hold the phone’s manufacturer responsible.

As a result, for the Court to find that Texas law would view a smartphone’s effect on a user as a substantial factor in that person’s wrong would be an impermissible innovation of state law.

Meador v Apple Inc., 911 F.3d 260 (5th Cir. 2018)

Did anyone subpoena Bob the Builder?

Watching Bob the Builder is not an adequate substitute for having a construction industry White Card.

On the weekend of 13-14 September 2014, 16 year old Alex Hayes entered a construction site in Kentucky with some friends.  They consumed whiskey and marijuana.  A little after 1am they began to leave.  Alex climbed onto a piece of equipment, started it and began to drive it up a floodwall.  The machine tipped over and caused severe injuries to his right leg.  Hayes’ parents sought compensation on his behalf from the the property developer and its construction contractor.

bob-the-builder-mini-playsets-assorted
This is not a training resource (Image from here)

It was common ground that Alex was trespassing at the time of the accident.

Kentucky statute law provides that [KY Rev Stat § 381.232 (2013)] –

The owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner.

The rigour of this provision is moderated by Kentucky’s doctrine of “attractive nuisance”.  This doctrine says that a landowner is liable for harm to children trespassing on land, if that harm is caused by an artificial condition on the land and if –

  1. The place is one where the possessor knows children are likely to trespass;
  2. The possessor knows of the condition and should realize it poses an unreasonable risk of death or injury to such children;
  3. The children, because of their youth, do not appreciate the danger;
  4. The value of the condition for the possessor and the cost of eliminating the risk are slight relative to the risk to the children; and
  5. The possessor fails to exercise reasonable care to eliminate the danger or protect the children.

The defendants sought summary dismissal of the claims which was granted: Hayes v DCI Properties – D KY LLC (Campbell Circuit Court, Judge Stine, 22 July 2016, unreported).  The plaintiffs appeal was dismissed: Hayes v DCI Properties – D KY LLC (Kentucky Court of Appeals, Combs, Lambert and Nickell JJ, 16 June 2017, unreported). The plaintiffs appealed to the Supreme Court of Kentucky.

The Supreme Court dismissed the appeal.  It was noted that Alex was licensed to drive a car, that he was an average high school student, and that earlier in the evening he had taken steps to prevent one of his friends injuring himself on a machine.

Although we no longer adhere to a strict age cutoff, e.g., children under fourteen years of age, a child must be unable to appreciate the risk involved in intermeddling with the condition. The evidence in this case clearly demonstrates that Alex not only was capable of appreciating but also in fact did appreciate the risk of operating a piece of heavy machinery.

As a result, Alex was not entitled to rely on the attractive nuisance doctrine.

Hayes and Hayes v DCI Properties LLC, __ S.W.3d __ (KY, 13 December 2018)

When natural medicine goes bad…

By and large, people have a right to choose what healthcare they and their family receive.  Some people opt for non-standard forms of medicine.  As early as the 1870s some westerners were prepared to go on record regarding the efficacity of Chinese cures (see Ex Parte Yee Quock Ping (1875) 1 VLR 112).  Where naturopathy is concerned, I can’t imagine my thoroughly practical friend – and Naturopath-in-Training – Madison ever recommending something  anything she thought would be useless or (worse) harmful.  Nevertheless, sometimes the process goes astray.

In early 2015 a baby in New South Wales was diagnosed with eczema.  His mother was advised by a medical practitioner that the condition could be managed but not cured.  She consulted a naturopath, who told her that it could in fact be cured.  The child was being breast fed and (so the reasoning ran) his eczema could be caused by the mothers diet and toxins in her body.  She recommended the mother take up a raw food diet.  Over the next month both mother and child lost significant weight.  Despite not seeing the child, the naturopath assured the mother that this was normal and that her baby was fat and needed to lose weight.  Astonishingly, in mid-May 2015 the naturopath advised the mother to fast and adopt a water-only diet.

A few weeks later the child’s mother took him to a General Practitioner.  He was referred to a hospital where he was found to be in a critical condition.  It was concluded that he would have died within days without medical care.  His weight had dropped from 8 kilograms to 6.4 kilograms (17.6lbs to 14.08lbs).  It was uncertain whether he would suffer permanent developmental delays due to the experience.

The child’s mother was charged with failing to care for a child.  The Crimes Act 1900 (NSW), §43A(2) provides that

A person:

(a) who has parental responsibility for a child, and

(b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life,

is guilty of an offence if the failure causes a danger of death or of serious injury to the child.

Maximum penalty: Imprisonment for 5 years.

The naturopath was charged with aiding, abetting, counselling or procuring the mother’s crime.  She pleaded guilty.  The District Court accepted that she was remorseful and she had meant well.  However, Berman DCJ pointed out that –

 

Well intentioned but seriously misguided advice is, as the facts of this case demonstrate, capable of causing great harm and even death to vulnerable children. Those giving such advice need to have it made clear to them that if they give such advice they need to make sure that it is not going to do harm and if they continue to give such advice they need to continue to ensure that no harm is being caused.

It is a serious matter, but not necessarily a crime, to tell a breast feeding mother to restrict her diet. It is even more serious when such advice continues after being told that both the mother and child have lost weight. And it is serious indeed and highly criminal for such advice to continue to the state where a child was at risk of death within a few days, in circumstances where the person giving the advice hadn’t even seen the state the child was in as a result of his or her advice being followed.

 

The naturopath was sentenced to be imprisoned for 14 months, to serve a minimum of 7 months.

R v Bodnar [2018] NSWDC 76

 

What did you see (or not)?

It’s amazing how much you can get wrong without legally causing injury. Especially if you’re a railway.

On 3 November 2011 a keen runner in Northfield Falls, Vermont, USA, was driving around mapping out running routes. He drove down Slaughterhouse Road with the windows of his truck up and the music playing.  Slaughterhouse Road crosses a railway line.  As the driver crossed that rail line he was struck by a loaded freight train, suffering severe injuries.  He sued the railway operator alleging, inter alia, that it had failed to provide adequate lines of sight for motorists to see oncoming trains and to install adequate warning devices.

Ziniti Accident
Accident scene (Image: Barre-Montpelier Times Argus)

At trial a jury in the Chittenden Superior Court found that there had been no negligence by the railway. The plaintiff appealed on a number of grounds. The two most interesting were that –

  1. The trial court erred by preventing him arguing that the defendant was liable based on the absence of a “crossbuck” sign on the right hand side of the road and of an ‘advance warning’ sign.
  2. The court erred by refusing to direct a verdict finding liability as a matter of law due to breach of a safety statute.
Crossbuck
Crossbuck Sign (image from here)

The Supreme Court of Vermont dismissed the appeal.  On the first point it found that no reasonable jury could have found that the absence of a crossbuck sign on the right caused or contributed to the collision.  That is, such a sign would not have given approaching motorists any warning greater than that already provided by the crossbuck sign on the left.  The Court pointed out that –

Although causation is normally left for the jury to determine, “it may be decided as a matter of law where the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way.” 

For much the same reason the Court also concluded that the trial court had been right to reject the argument relating to the advance warning sign.

Slaughterhouse
Accident scene from driver’s view (Image: Google)

On the second point, it was assumed that the plaintiff was correct in his assertion that the railway had breached Vermont statute 5 VSA §3673 which at the relevant time stated

A person or corporation operating a railroad in this State shall cause all trees, shrubs, and bushes to be destroyed at reasonable times within the surveyed boundaries of their lands, for a distance of 80 rods [about a quarter-mile] in each direction from all public grade crossings.

The plaintiff had sought (and the trial court refused to grant) a directed verdict as to “the vegetation violation of the Vermont statute”.  The Supreme Court agreed with the trial court.  It noted that even when a safety code breach is established, evidence that a defendant had acted as a reasonably prudent person would rebut the presumption of negligence arising from the breach. It was open to the jury to find that the railway had acted with reasonable care.  Furthermore, even if negligence had been made out, the plaintiff still needed to establish causation which he had failed to do.

Ziniti v New England Central Railroad Inc, 2019 VT 9

A case I regret

I long ago lost track of the number of cases I’ve handled or been otherwise involved in.  Some stick in your mind for one reason or another.  The facts may have been unusual, or the outcome particularly good.  One has stayed with me because I regret it despite getting a good outcome.

I had a brief and inglorious career as a defence lawyer in the workers’ compensation system.  A large part of my work involved opposing claims for weekly payments and medical expenses by injured workers.  In the case I am thinking of, the plaintiff was a fellow who was in his late 20s at the time of the hearing.  He had broken one ankle in a work accident and been on payments for some years.  The ankle had lead to other problems due to the change in his gait, and so he had progressed from an ankle fusion to multiple other fusions of the bones in his foot.  I can’t remember now, but I expect he would have been developing problems in his knee, hip and back for the same reason.

The workers’ compensation insurer (my client) had stopped his weekly payments on the basis that he could return to some form of work.  I found that implausible: he had left school early and had shown no aptitude for retraining.  It was difficult to see him in any line of work that didn’t involve having a sound body.  Moreover, his accident had involved no negligence and so he could not sue for common law damages.  Weekly payments would be his only form of recompense.

Despite all of this, my client’s instructions were clear: we could negotiate a further limited period of payments, failing which he would have to run his case.  So, off I went to court on the hearing day.  I expect we made some trifling offer to begin with.  Eventually we offered the limit of our instructions.  Now, I was secretly hoping his lawyers would tell us to get knotted.  If they’d run the case, I had no doubt we would have lost, have lost badly, and would have deserved to lose badly.  To my amazement, however, our offer was accepted and the case settled.

I’ve always regretted this outcome.  Yes, I know the justifications: I was there to carry out my client’s instructions.  He was represented by an experienced barrister and competent solicitors. And it was the plaintiff’s case to fight or compromise.  I don’t find any of those terribly satisfactory.  No matter how you gloss it over, there’s no honour in ripping off an injured worker.

He wasn’t called “Jerry”

In October 2015 Mr Chameoeun (“Jimmy”) Soun was hired to undertake $7,000.00 worth of work at a property in Cranbourne, Victoria. He did not provide the property owner with a formal contract and took a deposit of greater than 10%. Later that year he was also hired to build a laundry (which he did without obtaining a building permit) and a carport valued at $6,000.00 for which he again did not enter a contract. He was not a registered builder.

building meme
Image from here

Mr Soun was charged with a number of breaches of the Domestic Building Contracts Act 1995 and the Building Act 1993, including §29 of the former, which at the time provided that

A builder must not enter into a major domestic building contract unless … the builder is registered as a builder under the Building Act 1993, in the case of a natural person … Penalty:100 penalty units.

A ‘major domestic building contract’ was defined as one where the contract price exceeded $5,000.00 (subsequently raised to $10,000.00).

Mr Nuon opted neither to appear nor be represented at the hearing of the charges. In his absence the Dandenong Magistrates Court convicted him and imposed a fine of $5,000.00 plus costs.

Victorian Building Authority v Nuon (2019) Cranbourne Star-News, 7 February 2019, p.3

Sharpening with water

I’m writing this on the tram from work.  I left the office at 7:10pm and I’m letting go of the guilt.

It’s a warm day here – 40° just now – and so I’m getting the tram to St Kilda for a swim while there’s light.
I felt a pang of guilt before I left the office. My brain kept saying –

I could work till 10pm. I could get a lot done in those 3 hours.  I could draw a long-outstanding Statement of Claim, for instance, or wade through a particularly intractable set of medical records.

Yes, I could have.  But I did this for much of my earlier career and I know where it ends.  It ends with evenings where you really just sit in your office browsing Twitter or playing YouTube videos and getting less productive and more demoralised.
So one evening off won’t matter.  I had one yesterday because I was knackered after yesterday’s County Court matter.  I went for a great run at St Kilda and came in today feeling like a new man.

There’ll be plenty of late nights this year.  I have a lot of files and no shortage of deadlines.  But I do think it helps to remember that late hours are the scythes of legal practice.  Use them shrewdly and effectively and you’ll cut swathes through your work.  Overuse the and all you’ll do is blunt their edge.

And here I am at the Esplanade. See you at work tomorrow!