So I watched the season premiere of Biggest Loser last night.  Thinking it over now the clicking of social media has faded for a bit, I’m punting around some of my own thoughts on the subject of public health and obesity.

Something that concerns me is that much of the commentary on obesity seems less concerned to explain as to absolve.  In one of the Melbourne Age’s spinoff websites, an author has said

While we might not like to admit in our supposedly classless society, where everything is a matter of individual choice, there are clear structural links between being obese and being poor.

This doesn’t seem particularly comforting as an analytical tack.  Assuming Jesus was right, and the poor will always be with us (1), then we may be looking at a pretty well perpetual problem.  Moreover, it suggests a kind of economic determinism that writes off an entire slab of humanity.

Equally worrying is the school of thought that blames weight pretty well entirely on one’s genetics –

Weight is about 50% – 80% heritable … Height, for comparison, isn’t 100% heritable (I’ve seen it pegged in the 70% – 80% range but I still need to dig up this source).

Would you suggest that someone who’s too tall get shorter? No? Didn’t think so. You’ve been sold a pack of lies by the healthists and their corporate sponsors, the diet industry.

This actually seems to harken back to an older ‘biological determinism’ – at least to the 1920s belief that a person’s glands entirely controlled their destiny (2).  This school of thought is no more attractive for having a nasty link to the sort of eugenic thinking that brought us the decision in Buck v Bell 274 U.S. 200 (1927).

Both ideas in with a pattern recently identified by a British doctor in which patients wash their hands of responsibility for their health (3):

It would be easy to blame Britain’s fatness on lifestyle changes, but the worst of it is attitude. People just aren’t bothering to lose weight any more. Perhaps obesity is viewed as more normal. But this is also down to the attitude that we doctors increasingly encounter in our consulting rooms: the reluctance of patients to accept that ailments can be blamed on their behaviour, for which they are reluctant to take responsibility.

 

Patients blame obesity on the government, cunning food manufacturers, their parents and their genes. They demand fat-loss pills on the NHS and stomach-stapling surgery as a right. In a world where health care is becoming consumerised, patients see themselves as customers. There’s not much demand for hard truths.

Neither, however, seems to match well with external reality.  A recent article explored the notion of ‘evidence based medicine’ (EBM), an analytical approach in which evidence is “derived from the best available, methodologically rigorous, statistically powerful experimental studies” (4) and which is powerfully argued as the gold standard of knowledge of medical causation.  One database of EBM studies is the Cochrane Summaries.  These show consistently better health outcomes deriving from – you guessed it – diet and exercise (5).  This seems to match with what appears to be clinical knowledge: one obstetrician, commenting on the Albury-Wodonga area (6),

… said it was no surprise why people became so obese.

“They seem to be eating the wrong type of food, including sweet drinks, all loaded with calories,” he said.

“They have huge buckets of popcorn at the pictures, huge meals at takeaways, food snacks between meals.

“Healthy food and smaller portions should be encouraged.”

Dr Mourik said there was no secret to how to reduce weight. Less than 1 per cent of obese people had a medical cause — the rest ate more calories than they burned.

“Eat less fattening food and exercise more,” 

What are we left with, then?  A deep discomfort with saying – loudly and judgmentally – “put down the fork and put on the runners” validates and cleanses the conscience of people whose actions will bring about their untimely and needless ill health and death (7).  What is worse, it corrodes their ability to decide whether to be healthy or not.  In the end, it is this ability to choose rationally – at least to have the option of doing so – that is the hallmark of humanity

Notes

(1) Mark 14:7; Matt 26:11; John 12:8.

(2) Consider Michael Pettit’s ‘Becoming Glandular: Endocrinology, Mass Culture, and Experimental Lives in the Interwar Age’ in the latest issue of the American Historical Review.

(3) Max Pemberton, ‘Obesity is not a disease’, Spectator (UK), 12 October 2013.

(4) T.M. Davidson and C.P. Guzelian, ‘Evidence Based Medicine: The (only) means for distinguishing knowledge of medical causation from expert opinion in the courtroom’, 47 Tort Trial and Ins. Prac. L.J. 741 at 747. (2012)

(5) See Thomas D, Elliott EJ, Baur L. Low glycaemic index or low glycaemic load diets for overweight and obesity. Cochrane Database of Systematic Reviews 2007, Issue 3. Art. No.: CD005105. DOI: 10.1002/14651858.CD005105.pub2; Shaw KA, Gennat HC, O’Rourke P, Del Mar C. Exercise for overweight or obesity. Cochrane Database of Systematic Reviews 2006, Issue 4. Art. No.: CD003817. DOI: 10.1002/14651858.CD003817; and Orozco LJ, Buchleitner AM, Gimenez-Perez G, Roqué i Figuls M, Richter B, Mauricio D. Exercise or exercise and diet for preventing type 2 diabetes mellitus. Cochrane Database of Systematic Reviews 2008, Issue 3. Art. No.: CD003054. DOI: 10.1002/14651858.CD003054.pub3.

(6) Nigel McNay, ‘Our fat ‘epidemic’: Stop eating, says top doc’, Border Mail, 8 April 2013

(7) See the articles noted in (3) and (6)

Over on the Herald-Sun website, fans of soccer and Australian football are having a fairly predictable hissy fit over whose code is the more violent. The argument isn’t especially (or indeed, at all) interesting. What struck me, though, was the knock-offery of one of the names involved.

One team whose supporters were involved in the brawl the subject of the story is the Western Sydney Wanderers. Call me cynical, but I think it’s a safe assumption the name is a knockoff from the English team of Bolton Wanderers. This then got me thinking of the number of other team names which seem to have resulted from nothing more than looking abroad. For example, the Greater Western Sydney Giants and the New York Giants. Or the appropriation of name and badges by the North Queensland Cowboys …

… from the Dallas Cowboys …

… or the Brisbane Broncos …

… from the Denver Broncos …

Consider also the suspicious similarity between the badges of the Adelaide Crows …

And the Baltimore Ravens …

Don’t misunderstand me: I’m not on a riff about American – or even foreign – influence generally. I’m probably the most pro-American non-American in the world (a line I have shamelessly knocked off from Mark Steyn). I get deeply exasperated by the sort of precious insecurity that produces ‘poems’ like Jim Haynes’ “I’ll have chips” –

I’ll have chips of course, with good old tomato sauce
Foreign stuff called ketchup, it’ll never pass my lips
This is still Australia mate, it’s not an American state
When they ask if you want fries Say no thanks, I’ll have chips!
When they ask would you like fries Say no mate … I’ll have chips!

The relentless insular-and-proud-of-it mentality of Australia All Over always strikes me as less an attitude and more a symptom. All that said, though, looking at the lack of imagination in the mecca of popular sport leaves me asking: aren’t Australian sports fans capable of better?

In re a railway accident at Kerang (Coroners Court of Victoria, Coroner Hendtlass, 21 October 2013, reported in Shepparton News, 22 October 2013 at p. 13 and Weekly Times, 23 October 2013 at p. 13)

Hat-tip to journalist Chris McLennan whose report provided material for this casenote.

Facts

On 5 June 2007 a truck collided with a passenger train near the Victorian town of Kerang, causing the deaths of 11 passengers and seriously injuring another eight. At his subsequent criminal trial, the truck driver gave evidence that he had not seen the crossing warning lights flash and believed it was safe for him to cross (1).

Hearing

The accident was the subject of investigation by the Coroner. In the course of her investigation, Her Honour also considered 15 other deaths at rail crossings occurring between 2002 and 2009.

Ruling

The Coroner’s report noted that of the accidents considered, two drivers saw the train too late to stop, and ten neither saw nor heard the level crossing lights or sounds nor the train itself. She observed that the horns fixed to trains were designed for warning pedestrians rather than drivers.

Interestingly, weather and road design appear to have little influence on these accidents, with over 80% of accidents in rural areas occurring in clear weather and on a straight road.

A finding which may interest plaintiff lawyers is the observation that the fitting of anti-lock brakes to the driver’s truck may have contributed to the accident: while the Coroner could not state that the truck would have stopped before the collision had it not been fitted with anti-lock brakes, she was “confident the force of the collision would have been reduced and the consequences less severe”.

Notes

(1) The driver was charged with 11 counts of culpable driving and acquitted: R v Christian Scholl (Supreme Court of Victoria, jury trial, 2009, unreported)

Australian Competition and Consumer Commission v Baiada Poultry & Ors (Federal Court of Australia, Tracey J, 2013, reported in Country News, 4 November 2013 at p. 7)

Facts

Two corporations, Baiada Poultry and Bartter Enterprises, producers of chickens for meat, made public claims in connection with the sale of their birds that their chickens were free to roam in large barns. The body representing their industry – the Australian Chicken Meat Federation – repeated this claim on its website in relation to the entire industry.

The Australian Competition and Consumer Commission (ACCC) brought proceedings against the two corporations and the Federation alleging that they had engaged in conduct which was false, misleading and deceptive, or likely to mislead or deceive.

Hearing

The Court found that up to the 42nd day of a growth cycle which could be up to 56 days, the corporations’ chickens were kept at densities which meant they lacked “a largely uninhibited ability to move around at will in an aimless manner”.

Ruling

The corporations were ordered to pay fines totaling $400,000.00.

The Federation’s wrongful conduct was noted to relate only to the gap between its claims and the reality at the facilities operated by the corporations (as well as a facility operated be a defendant in another proceeding). The Federation was ordered to pay a fine of $20,000.00, notify its members of the outcome, and have its staff attend training in trade practices compliance.

Howie v Lawrence [2013] VSC 616 (Supreme Court of Victoria, Mukhtar AsJ, 1 November 2013)

Facts

The Uniting Church in Australia was formed in 1977 from the union of the Presbyterian, Methodist and Congregationalist Churches. The forming of the church was recognized in statute by The Uniting Church in Australia Act 1977. The statute created a property trust which held the church’s assets. The Church itself was the beneficiary of the trust.

In recent years the church has experienced a long term decline with concomitant impacts on its financial stability. In addition, certain of the Church’s operations had financially failed generating significant debt. In May 2013 the Church’s Synod for Victoria and Tasmania (which included the Synod Property Trust, which held legal title to the church’s property), resolved to consider sales of certain church properties. It was also resolved that that decisions concerning sale of land would be made after discussions with the communities affected.

On 9 October 2013, the general secretary of the Synod’s Committee announced that a number of church properties would be sold, including St Stephen’s Church at Williamstown along with the associated hall and residence.

Application

An application by a member of the St Stephen’s Church congregation (Kenneth Howie) sought judicial review of the decision to sell the premises under the Administrative Law Act 1978. He was accepted as having standing to make the application, being a person “whose interest…is…affected…to a substantial degree by a decision which has been made…”

Decision

In His Honour’s assessment, the critical question was whether the Synod’s committee was legally required by law to observe the rules of natural justice. While the Court accepted that neither the Uniting Church or its Synod were public bodes or a statutory authorities performing a statutory function, he considered it important that the church had both a statutory origin and statutory recognition. It was observed that the acts of an entity can be subject to judicial review even if they are not created by government or invested with statutory powers (for example, regulatory bodies recognised by statute, or having a ‘statutory linkage’ or performing a public function with government). The Court considered that there was a public element where the Church had a statutory origin or recognition. It noted that a public element can take a range of forms and that power is ‘public’ particularly if decisions carry significant weight.

Although the statutory basis of the church did not make it a public authority, it gave it a statutory and ‘public’ quality which meant it should “be accountable to the norms and values of public law including the requirements of natural justice”. However, it was not stated that religion was the business of government or that all of the Church’s activities would be subject to judicial review.

Outcome

His Honour considered that the Church’s committee had not shown cause why their decision should not be reviewed by the Court. The matter will now proceed through the process of judicial review.

Observations

A number of Australian churches and religious bodies have a statutory foundation, sometimes based on legislation dating from the early colonial period (one such Act dates from 1838), including the Brotherhood of St Laurence, the Church of Christ, Scientist, the Church of Scotland, the Church of England, the Hungarian Reformed Church, the Roman Catholic Church in respect of property matters, the Sisters of Mercy in respect of at least one parcel of land, the Church of Christ in connection with property, the Baptist Church, the YWCA and possibly the Wesleyan and certain other older denominations. Notwithstanding the court’s refusal to inject judicial review into all aspects of church life, it may be interesting over time to consider whether statutorily founded churches and bodies may find that determinations which have affect congregations (for example, decisions as to doctrine which result in schisms) may ultimately be susceptible to review in the courts. Even more intriguingly, a person seeking to claim damages from a church may be able to call into question the validity of decisions to establish church structures or property arrangements which affect that persons prospects of recovering compensation.

Douglas Muir v Gayle Lesley Manginelli (Supreme Court of Victoria, 10 September 2013, reported in Country News, 16 September 2013 at p. 7)

Facts

In November 2007, Deborah Muir (the wife of the plaintiff) attended a horse property operated by the defendant. An incident occurred when the defendant was leading her thoroughbred on a long lead towards a dam. Mrs Muir was riding her own horse in the vicinity. As the defendant’s horse passed Mrs Muir’s horse, it kicked backwards, hitting Mrs Muir in the chest and causing fatal injuries.

Proceeding

The plaintiff sought damages for the mental harm caused to him by his wife’s death, including for consequential loss of earnings. It was asserted that the defendant’s horse had in the past tried to kick other horses and should have been under better control, including being on a short lead.

Outcome

The proceeding was compromised on the second day of the trial after the evidence of the first witness. The terms of the settlement were confidential.

R v William John Lovel (Supreme Court of Victoria, Hollingworth J, 16 October 2013, reported in Shepparton News, 22 October 2013 at p. 1 and Campaspe News, 22 October 2013 at pp. 1 and 3)

Hat-tip to journalists Riahn Smith and Elaine Cooney whose reports provided material for this casenote.

Facts

On 1 October 2012 the defendant attended a function at the Tatura Hotel. While there he became involved in an altercation with Terence Keenan. In the altercation he punched Mr Keenan, who was rendered unconscious and died thirteen days later without regaining consciousness.

Mr Lovel was charged with manslaughter by an unlawful and dangerous act as a result of the incident.

Hearing

The matter was heard before Hollingworth J and a jury of five men and seven women in the Supreme Court at Shepparton. Mr Lovel pleaded not guilty to manslaughter.

The Crown alleged that the deceased was struck in an act of anger and retaliation and pointed to alleged inconsistencies in the histories given by the accused. The evidence of two lay witnesses was that the deceased had brought his fist back as if to prepare to hit the defendant, who was however able to punch first. On this basis the counsel for the defendant argued that his action had been in self defence and were therefore lawful.

Ruling

After deliberating for a little under three hours, the jury acquitted Mr Lovel of manslaughter.

Darryl Tate v State of Louisiana (Supreme Court of Louisiana, 5 November 2013, reported in The Advocate (Baton Rouge, La.), 6 November 2013)

Hat-tip to journalist Claire Galofaro whose exceptionally detailed report provided material for this casenote.

Facts

At age 17, Darryl Tate (applicant), shot a man in the course of a robbery, causing fatal injuries. In 1981, he pleaded guilty in Louisiana to second degree murder and was sentenced to a mandatory sentence of life without possibility of parole.

Legal Framework

In 2012, the Supreme Court of the United States found (in Miller v Alabama) that mandatory sentences of life without parole for offenders aged under 18 represented a cruel and unusual punishment and were therefore unconstitutional. It was held that a criminal court must required to consider the offender’s background, moral comprehension and rehabilitation prospects, although a sentence of life without parole might remain a permissible sentence after considering those factors.

The decision did not make clear whether Miller v Alabama required sentences already passed to be revisited. Courts in Missisippi, New Hampshire, Iowa and Illinois have considered that such sentences must be re-opened. The opposite view was taken by courts in Florida, Michigan, Minnesota and Pennsylvania. No consensus has emerged from the Federal circuit courts.

Procedural History

The applicant initially sought review of his sentence from the Orleans Parish Criminal District Court. His application was rejected and he appealed to Louisiana’s Fourth Circuit Court of Appeal. The appellate Court considered Miller’s Case to be retrospective and ordered that the applicant be re-sentenced.

The State appealed to the Supreme Court of Louisiana.

Decision

The Court found that Miller’s Case is not retrospective. It considered that the law requires a decision be treated retrospectively only where a substantive issue is involved (for example, the prohibition of the death penalty for infants). On its assessment, the change to the law was procedural: life imprisonment remains permissible but only the processes required before imposing such a term have changed. Hence, it was not retrospective.

Ruling

The state’s appeal was upheld and Tate’s original sentence confirmed.

Note

A dissenting judgment was entered by Johnson CJ and Hughes J.

Tate has the option of appealing to the Federal courts.

Victoria Police v Samuel Carroll (Shepparton Magistrates Court, Magistrate Smith, 4 November 2013, reported in Shepparton News, 5 November 2013 at p. 7)

An interesting matter relating to bail was dealt with by the Shepparton Magistrates Court on 4 November.

Hat-tip to journalist Darren Linton whose report provided material for this casenote.

Facts

The defendant is charged with armed robbery, allegedly committed on 28 October 2013. He was released on bail, subject to (inter alia) a condition that he not drink alcohol. After his release, he was found to have been drinking and his bail was reviewed.

Hearing

The defendant’s solicitor advised the court that the defendant is an alcoholic and no longer had an address to which he could be bailed. There were no readily available detoxification facilities to which he could be sent.

Decision

His Honour considered that the defendant should be remanded –

The defendant was remanded to appear again on 11 November 2013.

Note

No actual application for bail was made by the defendant. However, the Court’s observations raise the interesting issue of whether a court should exercise a kind of parens patriae jurisdiction in these matters, by providing a person with a structured setting (admittedly, gaol) rather than bail them under conditions where a breach of bail – and by extension, a worsening of their position – might be almost inevitable.

Victoria Police v Peter Butterworth (Magistrate Smith, Shepparton Magistrates Court, 21 October 2013, reported in Shepparton News, 23 October 2013 at p. 8)

Facts

The defendant was a 66 year old man who lived at the town of Picola. On 9 August 2013 he and his wife attended a function in a hotel at Barmah, some 9 miles distant. He arranged accommodation in the area so as not to need to drive after drinking.

The defendant’s wife had previously suffered four heart attacks and required constant medication but had accidentally left her medication at their home. No taxi service was available in the town, which was also outside of mobile phone coverage. He decided to drive to get the medication. While driving he was pulled over by police and ultimately found to have a blood alcohol reading of 0.133 (the maximum allowed under the law is 0.05).

Trial

Mr Butterworth pleaded guilty to drink driving. His lawyer submitted that the defendant’s wife’s medical needs and the fact that she was dependent on him needed to be taken into account.

The court noted that the defendant had a poor driving record which included convictions for drink driving and imprisonment for driving while disqualified. His Honour observed that the defendant had endangered himself as well as other road users.

Outcome

The defendant was sentenced to three months’ imprisonment, one month to be served immediately and the balance suspended for two years. His driver’s license was cancelled for 26 months (1).

Observation

It will be interesting to observe whether an appellate court will consider issues of necessity or spousal obligation as going towards guilt or only towards penalty. On one hand, arguably the defendant was obliged to protect his wife’s wellbeing and could best do that by leaving her at the Hotel with other people rather than by sending her on the journey to get her medication alone (2). This duty is perhaps fortified by comparison with the general lack of a duty towards non-family member associates (3) or strangers (4).

Notes

(1) An appeal has been lodged and the defendant has been bailed while it proceeds.

(2) Consider R v Russell [1933] VLR 59 (Vic., 1932)

(3) People v Beardsley, 113 NW 1128 (Mich., 1907); Vanvalkenberg v Northern Navigation Co, 30 OLR 142 (Ont., 1913); State v Willoughby, 294 SE 2d 407 (NC App., 1982).

(4) Zelenko v Gimbel Bros Inc, 287 NYS 134 (NY Sup. Ct., 1935)