Posted on by Stephen Tuck

Sharper v New Orleans Saints (2014) H&FLR 2015-5

Darren Sharper v New Orleans Saints (2014) H&FLR 2015-5

Louisiana Court of Appeal (Fourth Circuit)

22 October 2014

Coram: Belsome, Bonin and Dysart JJ

Appearing for the Plaintiff: Frank A Bruno
Appearing for the Defendant: Christopher J Kane and Gerard J Gaudet (of Adams & Reese)

Catchwords: Louisiana – workers compensation – American Football – professional athlete – claim – payments – time limit.

Facts: The plaintiff was a professional athlete employed by the defendant between 2009 and 2011.  In the 2009-2010 football season he sustained a left knee injury in the course of play.  He underwent treatment and was re-signed by the defendant for the 2010-2011 football season.  The defendant classed him “partially unable to perform” and paid him his full salary. During that season he ultimately returned to play.  He was not resigned by the defendant following the 2010-2011 season and formally retired from professional football in November 2011.  On 14 December 2011 he submitted a claim for workers compensation.

Louisiana Revised Statute 23:1209 A (1) provides that –

In case of personal injury … all claims for payments shall be forever barred unless within one year after the accident … the parties have agreed upon the payments to be made under this Chapter, or … a formal claim has been filed.

The plaintiff’s claim was rejected by Louisiana’s Office of Workers’ Compensation on the basis that his claim was ‘prescribed’ (that is, had been lodged out of time) because it was lodged more than 12 months after the injury was sustained and the running of the time limit was not delayed by the payment of compensation payments.  The plaintiff appealed.

Held: dismissing the appeal, that although there were games in the 2010-2011 season where the plaintiff did not play, he attended practices and games and took part in meetings and rehabilitation, all of which was work he was required to perform under his contract and for which he was paid his full salary.  Accordingly the salary he was paid consisted of earned wages and not payment in lieu of compensation.

Dobler v United Fidelity & Guaranty Co, 508 So.2d 176 (La. App. 4th Cir., 1987) and Jones v New Orleans Saints, 800 So.2d 1025 (La. App. 5th Cir., 2001), considered.

Judgment

The Court’s judgement is available here.

Posted on by Stephen Tuck

Bagley v Mt Bachelor Inc (2014) H&FLR 2015-4

Myles A. Bagley and Ors v Mt Bachelor Inc and ors (2014) H&FLR 2015-4

Supreme Court of Oregon

18 December 2014

Coram: Court en banc

Appearing for the Plaintiff: Arthur C Johnson (of Johnson Johnson & Schaller) and Kathryn H. Clarke.
Appearing for the Defendant: Arthur C. Balyeat (of Balyeat & Eager)
Appearing for the Oregon Association of Defence Counsel (amicus curiae): Michael J. Estok (of Lindsay Hart)
Appearing for the Oregon Trial Lawyers Association (amicus curiae): Kristian Roggendorf (of Roggendorf Law)

Catchwords: Oregon – skiing – injuries – liability – release – waiver – public policy – unconscionability.

Facts: The plaintiff was an experienced snowboarder. On 29 September 2005 he purchased a season pass from the defendant for use at its ski area. Purchase of the pass involved signing an extensive prospective release of liability, of which he was reminded while on site by wording on his pass and by signs. On 19 February 2006 the plaintiff sustained very serious injuries while going over a snowboard jump, allegedly because it had been negligently designed, constructed and maintained by the defendant.

The plaintiff brought proceedings against the defendant in Deschutes County Circuit Court, which were summarily dismissed based on the release signed by the plaintiff: Bagley v Mt Bachelor Inc (2010) The Bulletin, 6 September 2013. The plaintiff’s appeal to the Court of Appeals was dismissed: Bagley v Mt Bachelor Inc, 258 Or. App. 390, 310 P.3d 692 (2013). The plaintiff further appealed to the Supreme Court.

Held: allowing the appeal, that –

1. (a) The Courts will not enforce contracts which are illegal. An agreement will be illegal if it is (inter alia) contrary to public policy as expressed in constitutional provisions, statute or case law, or if it is unconscionable.

Uhlmann v Kin Daw, 97 Or. 681, 193 P. 435 (1920); Delaney v Taco Time International Inc, 297 Or. 10, 681 P.2d 114 (1984), followed.

(b) Quaere whether the concepts of public policy and unconscionability are separable.

2. A contract may be unconscionable on procedural or substantive grounds.

(a) Procedural unconscionability considers whether there was oppression or surprise when the contract was formed.  Oppression will exist when there is such an inequality of bargaining power between the parties that there is no real opportunity to negotiate the terms of the contract and there is no meaningful choice.  Suprise occurs when the terms are hidden or obscured (for example, by being in fine print or ambiguously worded) from the perspective of the party claiming unconscionability

Vasquez-Lopez v Beneficial Oregon Inc, 210 Or. App. 553, 152 P.3d 940 (2007); Acorn v Household International Inc, 211 F. Supp. 2d 1160 (ND Cal., 2002), followed

(b) Substantive unconscionability considers whether the terms of the contract contravene public interest or public policy.  It will be necessary for the court to consider whether enforcing the release will cause a harsh or inequitable result, whether the party claiming the benefit of the release serves an important public function, and whether the release absolved the releasee from more than ordinary negligence.

Commerce & Industry Insurance v Orth, 254 Or. 226, 458 P.2d 926 (1969); Estey v MacKenzie Engineering Inc, 324 Or. 372, 927 P.2d 86 (1996); Real Good Food v First National Bank, 276 Or. 1057, 557 P.2d 654 (1976), followed

(c) The factors listed as relevant to unconscionability are not exclusive, and no single factor is critical.  The determination that a release breaches public policy or is unconscionable reflects the totality of the circumstances as well as any other factor (including societal expectations).

Judgment

The Court’s judgement is available here.

Posted on by Stephen Tuck

Trade & Labour Union v Local Gov’t Assoc’n (2014) H&FLR 2015-3

Trade & Labour Union v Local Government Association (2014) H&FLR 2015-3

European Court of Justice

18 December 2014

Coram: Bay Larsen P, Jürimäe, Malenovský, Safjan and Prechal JJ

Appearing for the Plaintiff: Jacob Sand (of Gorrissen Federspiel)
Appearing for the Defendant: Y. Frederiksen (instructors not known)
Appearing for the Danish Government: C. Thorning and M. Wolff (instructors not known)
Appearing for the European Commission: M. Clausen and D. Martin (instructors not known)

Catchwords: European Union – Denmark – employment law – dismissal – obesity – discrimination – disability.

Facts: Mr Karsten Kaltoft was employed from 1 November 1996 by the Municipality of Billund as a childminder, initially on a fixed term contract and subsequently on a permanent contract.  It is common ground that at all material times the plaintiff was obese within the definition promulgated by the World Health Organization.  In November 2010 the Municipality terminated Mr Kaltoft’s employment, asserting that this followed a reduction in the number of children requiring care.  Mr Kaltoft considered that his dismissal had been motivated by his obesity.  The plaintiff brought proceedings on his behalf against the defendant, which represented his employer.

The proceeding was based on Denmark’s Act Respecting Prohibition Against Discrimination on the Labour Market (No. 1349 of 2008), ¶2(1) and ¶7(1), which implements Articles 1 and 2 of European Council Directive 2000/78 prohibiting direct or indirect discrimination on grounds of “religion or belief, disability, age or sexual orientation”

The trial court stayed the proceedings and sought a preliminary ruling from the European Court of Justice as to whether (a) it was unlawful for a government employer to discriminate on the basis of obesity and (b) obesity can be deemed to be a disability and, if so, in what circumstances will that disability be protected from discrimination: Fag og Arbejde v Kommunernes Landsforening (Kolding District Court, 25 June 2013, unreported).

Held: referring the matter back to the trial court, that –

1. Neither Directive 2000/78 nor the Charter of Fundamental Rights of the European Union can be extended by analogy beyond the grounds of discrimination they identify.  Accordingly, European law does not include a general principle of non-discrimination in employment based on obesity.

Chacón Navas v Eurest Colectividades SA, EU:C:2006:456; Coleman v Law, C-303/06, EU:C:2008:415, followed
Åklagaren v Åkerberg Fransson, C-617/10, EU:C:2013:105, considered

2. ‘Disability’ in Directive 2000/78 refers to a limitation resulting from (inter alia) physical impairment which in combination with other barriers may hinder the worker’s participation in employment on an equal footing with other workers. Because obesity does not necessarily pose a limitation it is not in itself a disability (1).  However, should a worker’s obesity give rise to long-term limitations which may hinder their capacity to work on an equal footing with other workers, it will then constitute a disability pursuant to Directive 2000/78

HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening, EU:C:2013:222, Z v A Government department and Board of management of a community school, C-363/12, EU:C:2014:159; and Glatzel v Freistaat Bayern, C-356/12, EU:C:2014:350, considered.

3. It is not relevant to the scope of Directive 2000/78 whether or not a person has contributed to their own disability (2).

HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening, EU:C:2013:222, considered.

Judgment

The Court’s judgement is available here.

========================================================

(1) Cf McDuffy v Interstate Distributor Co. (Multnomah Co. Cir. Ct., 2005), Seattle Times, 7 November 2005.  In this case, a 550-pound truck driver claimed to have been wrongfully suspended from duty based on his weight.  He was awarded $109,000.00 after he successfully demonstrated to the court that, regardless of his weight, he was able to perform his duties with only minor limitations.

(2) The evidence indicates that Mr Kaltoft had been unable to sustain any significant weight loss: see ¶19. Conceivably the Court might have assessed this point differently if there were evidence that Mr Kaltoft’s weight was wholly self inflicted: Noting the discomfort which overweight children provoke in some people, it is possible that an argument that Mr Kaltoft was ‘modelling bad behaviours’ would have prompted the Court to formulate an exception on the basis that this would be in the best interests of the children (cf Sec’y of Dep’t of Health and Comm’ty Serv. v JWB and SMB 175 CLR 218 (Austl., 1992)).  Such a line of analysis would, however, present significant further legal problems as to what behaviours ought be modelled.  For example, should an obese carer be required to complete a marathon or train for an ironman competition?  This would raise intriguing questions in relation to autonomy and personal time: Cole v South Tweed Heads Rugby League Football Club Ltd, 217 CLR 469, 476-477 per Gleeson CJ (Austl.,2004); Young v Workers Compensation Appeals Board (2014) H&FLR 37.

Posted on by Stephen Tuck

R v Langford (2009) H&FLR 2015-2

The Queen v Jessica Maree Langford (2009) H&FLR 2015-2

Melbourne County Court (Victoria)

29 March 2009

Coram: Judge Howie

Appearing for the Prosecution: Anne Hassan (of the Office of Public Prosecutions)
Appearing for the Defendant: Dermott Dann (instructors not identified)

Catchwords: Victoria – criminal law – swimming – alcohol – culpable driving – death – sentence

Facts: The defendant was aged 19 years on 29 November 2008. She and her boyfriend had attended Shoreham Beach late that night where they swam naked and drank premixed bottles of vodka and soft drink as well as a bottle of neat vodka.  After swimming they dried themselves with their clothes and the defendant (still naked) began to drive them back to Frankston.  At Hastings the car was involved in an accident and the defendant’s boyfriend was killed.

The defendant’s blood alcohol reading two hours after the accident was 0.09%.  As a probationary driver she was not permitted to have a blood alcohol reading higher than 0.00% (1). The police concluded that at the time of the accident the defendant was driving at 104kph in a 90kph zone.

The defendant was charged with culpable driving causing death and dangerous driving causing death. Magistrate Wakeling committed her to stand trial in the County Court: DPP v Langford (2009), Sydney Morning Herald, 8 September 2009.

The Crimes Act 1958 (Vic.) provides as follows regarding these offences –

[in §318(1 & 2)] – Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both. 

… a person drives a motor vehicle culpably if he drives the motor vehicle—

(a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or

(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or

(c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; …

and

[in §319(1)] – A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

The defendant pleaded guilty in the County Court to dangerous driving causing death. Her barrister noted that she suffered from marked pre-existing psychological problems, had a post-accident history including substance abuse, multiple suicide attempts and a diagnosis of bipolar affective disorder, and had been prescribed anti-psychotic medication. He noted that she had no criminal history.

The Crown submitted that the defendant’s mental health was irrelevant, and that her good character and prospects for rehabilitation did not alter the need for general deterrence. It was submitted that the defendant should be detained in a Youth Training Centre.

Held: Sentencing the defendant to a community based order and prohibited her from driving for 18 months, that –

1. The attitude of the deceased’s family, who forgave the defendant and openly supported her at trial, was relevant to imposing a lenient sentence.

2. It was relevant that the defendant’s psychological state was fragile and that her recovery would not be assisted by a custodial sentence.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the Herald Sun (Melbourne) of 29 March 2010, the Daily Telegraph (Sydney) of 23 March 2010 and the Sydney Morning Herald of 8 September 2009 and 15 February 2010.

======================

(1) The limit in Victoria for the holder of a full licence is 0.05%.

Posted on by Stephen Tuck

Police v Licciardello (2007) H&FLR 2015-1

Police v Chas Licciardello (2007) H&FLR 2015-1

Sutherland Local Court (New South Wales)

c. 23 January 2007

Coram: Keogh M.

Appearing for the Prosecution: Not known
Appearing for the Defendant: Stephen Russell (instructors not identified)

Catchwords: New South Wales – criminal law – rugby – supporters – satire – offensive behaviour at stadium – reasonable person

Facts: The defendant was a television satirist.  On 14 July 2006 he attended at the Jubilee Stadium prior to a rugby match between the Canterbury Bulldogs and the St George-Illawarra Dragons. In order to parody Bulldogs supporters’ reputation for violence, he dressed in the team colours and offered to sell imitation knuckledusters and flares, a rubber knife, balaclavas and boxes labelled “Rohypnol” as “Official Bulldogs Merchandise”.  The incident was filmed with the intention of later screening it on television.  The spectators present generally took the incident in good spirit, but a number of fans became aggressive (1), prompting police to intervene and charge the defendant with offensive behaviour.

The Summary Offences Act 1988 (NSW), §4 provides that –

(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.
Maximum penalty: 6 penalty units or imprisonment for 3 months.

(2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.

(3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

The video of the incident was viewed by the Court.

Held: Dismissing the charge, that –

1. The crowd’s response was relevant in considering the charge.  Her Worship observed that “I can’t ignore the fact that overwhelmingly the crowd responded to the accused’s conduct as if it were a joke, which it was – although it may not have been a joke to everyone’s liking”.

2. That one group of people did not appreciate the humour involved and were insulted did not necessarily prove that the conduct was offensive.  Most people at the incident were good natured and shared the joke, and reasonable people would not have been offended.

An application for the police to pay the defendant’s costs was refused.

Judgment

No written judgment is available.  This report has been prepared based on the account in the Herald Sun (Melbourne), 24 January 2007, at p.7.

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(1) Suggesting a failure to appreciate irony!

Posted on by Stephen Tuck

State v Mayer (2014) H&FLR 2014-65

State v Margaret Renee Mayer (2014) H&FLR 2014-65

230th Criminal District Court (Texas)

11 December 2014

Coram: Judge Hart.

Appearing for the Prosecution: Alison Baimbridge (of Harris County District Attorney’s Office)
Appearing for the Defendant: Guy Womack (of Guy L Womack & Associates)

Catchwords: Texas – criminal law – cyclist – collision with car – failure to aid – sentence

Facts: At 10:20pm on 1 December 2013, a truck driven by the defendant (aged 36) struck cyclist Chelsea Norman (aged 24).  Norman’s injuries included swelling of the brain which lead to her death. The defendant did not stop or attempt to aid the deceased after the collision.

At the time of the accident the street was dark.  The deceased was not wearing a helmet.  Her bicycle did not have lights and she was wearing dark clothing.  Investigators could not determine whether she had been riding in the bicycle lane. The defendant had been drinking with coworkers and become lost while attempting to drive home.  It was not established whether she was intoxicated.

The defendant was charged with failing to stop and render aid, a felony.  She pleased not guilty on the basis that she claimed to have thought that she had hit a tree and not a person.

During the trial the jury were advised that the defendant had been convicted of driving while intoxicated in 2002 and that she may have regularly abused alcohol and drugs. In April 2014 she was remanded after breaching her bail conditions by drinking alcohol.  The jury were also shown photographs of the deceased’s autopsy (1).

Held: The defendant was convicted of the charge presented.  It was open to the court to impose penalty ranging from two years probation to twenty years imprisonment.    She was sentenced to fifteen years imprisonment.

Judgment

Sentence was decided by the jury and no written judgment is available.  This report has been prepared based on accounts in the Houston Chronicle on 11 December 2014 and 12 December 2014, on radio station KHOU on 10 December 2014 and website Click2Houston on 10 December 2014.

Note: The strong penalty imposed in this case suggests it may represent a high water mark in hostilities between motorists and cyclists. In 2014 commentator suggested that some motorists might understandably take steps to harm cyclists (2).  One Australian broadcaster referred to cyclists whose conduct falls short of perfection as “cockroaches on wheels” (3), although no doubt the implied threat of extermination was unintentional (4).   One might hope that the dissipation of antagonism predicted by Allen Mikaelian is underway (5)

========================================================

(1) There is room for doubt as to what inferences the jury could usefully have drawn from these photographs.  See Kevin Davis, ‘Brain Trials’, 98(11) ABA Journal 36 at 39-41 (2012).

(2) Courtland Milloy, ‘Bicyclist bullies try to rule the road in D.C.’, Washington Post, 8 July 2014.

(3) Derryn Hinch, ‘Cockroaches on Wheels’, Human Headline website, 19 August 2013.

(4) Disturbingly, ‘cockroaches’ was the name used by the perpetrators of the Rwandan genocide for their victims: Prosecutor v Bizimungu, The Independent, 18 May 2011 (Int. Crim. Trib. Rwanda, 2011); United States v Munyenyezi (1st US Cir. Ct. App., Lynch CJ, Thompson and Barron JJ, 25 March 2015, unreported).

(5) Allen Mikaelian, ‘Pedaling through Memory’, 52(6) Perspectives on History 61 (2014).

Posted on by Stephen Tuck

Honeycutt v Meridian Sports Club LLC (2014) H&FLR 2014-64

Tanya Honeycutt v Meridian Sports Club LLC (2014) H&FLR 2014-64

California Court of Appeal (Second Appellate District)

21 October 2014

Coram: Mosk PJ, Kriegler and Goodman JJ

Appearing for the Plaintiff: Marilyn H. Nelson and Abram Charles Zukor (of Zukor & Nelson)
Appearing for the Defendant: Anthony J Ellrod and Ladell Hulet Muhlestein (of Manning & Kass, Ellrod, Ramirez, Trester)

Catchwords: California – negligence – kickboxing – assumption of risk – waiver – instructor – inherent risk

Facts: The plaintiff attended a kickboxing class at the defendant’s premises taught by instructor Hakeem Alexander.  Before the class the plaintiff signed an assumption of risk agreement and waiver of liability for injury. While assisting the plaintiff to perform properly a roundhouse kick, Alexander grabbed her right ankle between the ankle and knee and instructed her to ‘rotate’ without providing further direction.  She rotated her left knee, suffering a significant knee injury.

The plaintiff sought compensation for personal injury caused by negligence and gross negligence.  The trial court granted the defendant’s application for summary judgment based on the waiver signed by the plaintiff: Honeycutt v Meridian Sports Club LLC (Los Angeles County Superior Court, Cotton J, 7 January 2014, unreported). The plaintiff appealed.

Held: Dismissing the appeal, that –

1.  Primary assumption of risk arises when a defendant owes no duty to protect a plaintiff from a particular harm. It precludes liability for injuries arising from risks inherent in a sport.

Avila v Citrus Community College District (2006) 38 Cal.4th 148, followed.

2.  Coaches and instructors have a duty not to increase the risks inherent in sports participation, and breach their duty of care to a student or athlete if they intentionally injure the athlete or engage in conduct that is ‘reckless’ (that is, wholly outside the range of the ordinary activity involved in teaching or coaching the sport.

Kahn v East Side Union High School District (2003) 31 Cal.4th 990, followed.

3.  Injuries to shoulders, hands and knees are inherent risks in a vigourous physical activity like kickboxing.  In this case the plaintiff’s injury was squarely within the doctrine of primary assumption of risk.  The coaches actions did not increase the inherent risks.

4.  Gross negligence (which if found would avoid the waiver) is a “want of even scant care” or “an extreme departure from the ordinary standard of conduct”. That another instructor would have acted differently is not evidence of cross negligence

City of Santa Barbara v Superior Court (2007) 41 Cal.4th 747, followed.
Decker v City of Imperial Beach (1989) 209 Cal.App.3d 349, considered.

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

State v Corrigan (1998) H&FLR 2014-63

State v Marlene Corrigan (1998) H&FLR 2014-63

Contra Costa County Superior Court (California)

27 February 1998

Coram: Arnason J.

Appearing for the Prosecution: Brian Haynes (1) (of Contra Costa District Attorney’s Office)
Appearing for the Defendant: Laurie Saunders and Michael Cardoza (of Cardoza Law Offices)

Catchwords: California – child abuse – obesity – heart failure – bed sores – sentence.

Facts: The defendant was the mother of Christina Corrigan, who died of congestive heart failure in November 1996 aged 13 years.  At the time of her death, the deceased weighed 680 pounds (309 kilograms) (2).  The evidence indicated that she was suffering from bedsores, that excrement was lodged in the folds of her skin, and that she had spent her final months immobile on a dirty sheet in front of a television in the family home.  She had not attended school since Grade 6.   She had been seen by medical practitioners 90 times up to age 9 (at which time she weighed 237 pounds / 108 kilograms) but had received little or no medical care since that time.

The defendant was charged with felony child abuse.  She contended that she had been overwhelmed with personal responsibilities and posited that the deceased may have suffered from Prader-Willi Syndrome.  She denied being aware of her daughter’s bedsores.

Held: Convicting the defendant of misdemeanour child abuse, that –

1.  Conviction of a misdemeanour rather than a felony was appropriate because it was her passive rather than active misconduct that contributed to the deceased’s congestive heart failure (3).

2.  The maximum penalty for this offence was six months imprisonment; the court however imposed a sentence of 240 hours community service, three years probation (to include counselling and being barred from working in child care) and a $100.00 fine.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the Philadelphia Inquirer of 10 January 1998, the Los Angeles Times of 2 March 1998 and the San Francisco Chronicle of 28 February 1998.

Note

This case suggests that a person’s duty to take active steps to prevent a family member coming to harm (4) will take priority over the absence of a general duty to rescue a person intent on injuring themselves (5)

========================================================

(1) Since appointed to the Contra Costa County Superior Court.

(2) The weight may be considered significant: a weight of this magnitude, even in an adult, is noted to pose very considerable problems for both mobility and medical care: Dr Edward Thompson, ‘Supersize Me’, Pulse, 22 November 2013.  Medical care is likely to require long-term hospitalization and may cause irreparable injury: Dr Karen Hitchcock, ‘Fat City’, 87 The Monthly __ (2013).  An indication of the potential for significant discomfort associated with pronounced skin folds is offered by the post “Day in the Life: Shower, Chafing, & Jock Itch” on the blog Living ~400lbs … and believe me I am still alive.

(3) Cf R v Stone and Dobinson [1977] 2 All ER 341 (Eng. Ct. of App.), in which the defendants were convicted of manslaughter for failing to take adequate steps to prevent a mentally unbalanced relation who lived with them from starving and mistreating herself to death.

(4) R v Russell [1933] VLR 59 at 67-68 (per Cussen ACJ) and semble 76-77 (per Mann J); but see 83 (McArthur J, dissenting) (Sup. Ct. of Vic.)

(5) Stuart v Kirkland-Veenstra (2009) 254 ALR 432 at 457 (per Gummow, Hayne and Heydon JJ) and semble 463 (per Crennan and Kiefel JJ) (High Ct. of Aust.)

Posted on by Stephen Tuck

Police v Unidentified Driver (2014) H&FLR 2014-62

Police v Unidentified Driver (2014) H&FLR 2014-62

Wonthaggi Magistrates Court (Victoria)

c. 26 November 2014

Coram: Magistrate Raleigh

Appearing for the Prosecution: Leading Senior Constable Kimberly Stewart (instructed by Victoria Police)
Appearing for the Defendant: Ruby Oldham (of Oakleys McKenzie-McHarg)

Catchwords: Victoria – traffic offences – stop sign – school crossing – children – recklessly endangering life – sentence

Facts: The defendant drove dangerously on two occasions.  On 11 November 2013, while on her way to take her children to school, she ‘ran’ a stop sign.  She then sped through a school crossing at 60 km/h.  After dropping off her children, she ‘smoked’ her tyres while performing a U-turn, and then sped through the school crossing again.  Subsequently, on 8 March 2014, she was seen travelling between 60-70km/h in a 60 km/h zone.  She stopped at an intersection and again ‘smoked’ the tyres when accelerating away.

These incidents breached a community corrections order which had previously been imposed for another matter.  She was charged with a number of offences including reckless conduct endangering life (Crimes Act 1958 (Vic), §22).

Held: The Court noted that the defendant’s actions had the potential to kill her own children as well as those of others.  His Honour oberserved that the children may be safer without their mother and that her previous court appearance had not affected her behaviour.  He noted there was evdience she was continuing to use marijuana.

The defendant was sentenced to three months imprisonment, suspended for 12 months.  Her drivers licence was cancelled for 12 months and fined her $500.00.

Judgment

No written judgment is available.  The report prepared based on the account in the South Gippsland Sentinel-Times, 2 December 2014, p.25.

Note

The case is reported here because of its potential relevance to dangerous driving in the vicinity of athletic events.

Posted on by Stephen Tuck

R v Unidentified Sports Coach (2014) H&FLR 2014-61

The Queen v Unidentified Sports Coach (2014) H&FLR 2014-61

Albury District Court (New South Wales)

2 December 2014

Coram: Judge Whitford

Appearing for the Appellant: Christine Mendes (instructors not identified)
Appearing for the Respondent: Andrew Hanshaw (instructed by NSW Director of Public Prosecutions)

Catchwords: New South Wales – sports coach – indecent assault on a girl under 16 years – grooming – appeal – sentence

Facts:  The defendant was a 25 year old sporting coach from a small community in the Riverina.  In 2013 he committed a number of offences in relation to a 14 year old girl.  It appears the victim was known to him in their community but not part of the sports team he coached.  Over a period of some months he sent her a number of sexually explicit text messages and suggested both sexual activity and developing a relationship.  On two occasions he touched her in a sexual manner.  He was charged with indecent assault on a girl under 16 years (Crimes Act 1900, §61L), and with grooming (Crimes Act 1900, §66EB).

The NSW Local Court (Magistrate Greenwood) noted the impact of the offences on the victim, including her loss of reputation and feeling judged and blamed.  A pre-sentence report indicated that the offender had little insight or remorse into his offending.  He was sentenced at first instance to 20 months imprisonment, to serve a minimum of 15 months:  R v Unidentified Sports Coach (2014), Border Mail, 15 July 2014, p.__.  The defendant appealed against the severity of the sentence.

Held: allowing the appeal, that the defendant had extensive support from his family and community.  A variation of the penalty was considered to have the potential to continue the defendants efforts at rehabilitation.  The sentences imposed by Magistrate Greenwood were converted to suspended sentences.

Judgment

No written judgment is available.  The report prepared based on the account in the Border Mail (Albury Wodonga), 3 December 2014, p.3.