The challenges of maturity

When a worker is of mature years, a damages claim for work injuries can present particular challenges

country west
Image from here

Ms Schofield was aged in her mid-fifties.  She suffered a right knee injury while employed by a butcher.  At the time of her accident she was receiving average weekly earnings of around $375.00.

She sought leave in the Melbourne County Court to sue for common law damages for economic loss and pain and suffering on the basis that she had suffered a serious injury.  The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic.) provides at §335(2)(d) that –

If—
(a) the assessment under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985 of the degree of impairment of the worker as a result of the injury is less than 30 per cent; or
(b) the worker makes an application under section 328(2)(b) —
the worker may not bring proceedings for the recovery of damages in respect of the injury unless— …
(d) a court, other than the Magistrates’ Court, gives leave to bring the proceedings …

It was common ground that if the plaintiff retained any work capacity she would not meet the definition of “serious injury”, at least in respect of economic loss.  The medical evidence broadly showed that if she retained any work capacity it was for sedentary or clerical duties.

Judge Dyer noted that

Ms Schofield is relatively advanced in age and has not worked since sustaining her injury in 2014. She has very limited education and my own assessment of her, particularly during cross-examination before me, was that she would have very limited skills to offer other than in a very simple customer service role. Plainly her knee injury renders her unsuitable for that type of employment.

She has effectively no experience in office work, and I accept her evidence, supplemented to some extent by the report of Mr McGuire from Converge International, that she did require further computer skills in order to have any real prospect of employability in an office environment. Indeed, the plaintiff’s own evidence of effectively repeating [a] short computer course without any real benefit confirms my view that she is a woman who would have no real aptitude for any office work position in the open labour market.

His Honour concluded that the plaintiff had no current work capacity for suitable employment and that this was likely to continue indefinitely.  She was granted leave to sue for damages.

Schofield v Country West Gourmet Meat & Chicken Pty Ltd [2018] VCC 614

When is it time to go?

Only a quick post tonight.

The image that kept cropping up in my social media feeds today was an unflattering photo of Madam Justice Ruth Bader Ginsburg at Justice Kavanaugh’s swearing in.  The usual comments have been, unflatteringly but not unfairly, along the lines of “she looks like she was taken from a nursing home and is deeply annoyed that this isn’t a visit to IHOP.

Ginsburg
Image from here

This got me thinking about when judges should hang up the boots.  Judges on the High Court of Australia are required constitutionally to retire at seventy years as a result of a referendum in the 1970s.  This, perhaps, reflects some extremely long judicial careers on the High Court.  Longest of all was that of Sir Edward McTiernan.  McTiernan was appointed in 1930 and retired (not altogether willingly) in 1976.  He was aged 84 years.  His judgments were never overly impressive (my impression as a law student was that his most common judgment was the phrase “I concur”), but he still seemed to be active and involved until retirement.

Edward_McTiernan_1954
Sir Edward McTiernan (Public Domain)

McTiernan J’s career was rivalled by the longevity of Sir George Rich.  Rich served from 1913 to 1950 and retired at the age of 87.  His judgments, too, are never overly deep.  Wikipedia offers the mixed compliment that –

Rich’s judgments are generally considered to be clear and concise. Some commentators attribute this more to laziness than to a knack for clarity.

George_Rich
Sir George Rich (Image from here)

The same can be said away from the Bench too: I’m sure we can all think of barristers, solicitors and legal academics we’ve known who were, well, past their prime.  So my question is: when should lawyers look at calling it a day?

Thoughts?

Taking a gamble at work

You don’t often see an employer using its own fault as a defence.  Except maybe in a jurisdiction where gambling is a way of life.

Mr Baiguen seems to have had a stroke before or just upon arriving for work. He was noticed to be dribbling, his face was drooping and he appeared unresponsive and disoriented. Two coworkers gave him a lift home. When his girlfriend found him two days later he was dribbling and unable to talk. He had missed entirely the three-hour window within which medical care might have substantially improved his outcome.

The Nevada Industrial Insurance Act (NRS 616A.020(1)) provides that

The rights and remedies provided in [this Act] for an employee on account of an injury by accident sustained arising out of and in the course of the employment shall be exclusive … of all other rights and remedies of the employee … on account of such injury.

Baiguen sued his employer for failing to provide him with timely medical help. The District Court found that his sole remedy lay in worker’s compensation and dismissed the claim:Baiguen v Harrahs Las Vegas LLC (Clark Co. Dist. Ct, Judge Herndon, 14 March 2016, unreported). The Court of Appeals disagreed and reversed the lower court: Baiguen v Harrahs Las Vegas LLC (Nev. Ct App., Silver CJ, Tao and Gibbons JJ, 28 February 2017, unreported). The employer appealed to the Supreme Court of Nevada.

Harrahs
Image from here

The Supreme Court agreed with the District Court. It followed its earlier decision of Mirage v Cotton, 121 Nev. 396; 116 P. 3d 56 (2005), finding that an injury occurs ‘in the course of employment’ when it occurs at the workplace while going to or from work within a reasonable time.

The Court also considered that the accident had arisen out of Mr Baiguen’s employment. Nevada law classes risks at work as “employment risks” (for example, getting a hand caught in a machine), “personal risks” (for example, epilepsy) and “neutral risks” (for example, getting struck by lightning).  A mix of an employment risk and another risk would be an employment risk. The court found that while Baiguen’s stroke was a personal risk, his employer’s defective response to his symptoms had caused him to lose his chance of a better medical outcome:

That Harrah’s might respond inadequately to Baiguen’s stroke in the workplace, due to inadequate workplace policies, procedures, or training, or fail to follow existing policies, procedures, and training, is a risk related to Baiguen’s employment. Such inadequate policies, procedures, and training are conditions of the workplace akin to well-recognized physical hazards, like the risk that the injury from a painter’s stroke will be worsened by falling off a ladder, or an epileptic cook who suffers a seizure and burns himself on a stove.

A second argument for the injury arising out of employment is intriguing. The court accepted the classic position that at common law a person is not obliged to aid a stranger in peril*. A duty exists where a special relationship (like employer/employee) exists. The court said that

Under the facts before us, any duty on Harrah’s part to render aid to Baiguen would have arisen out of the employer-employee relationship, not another special relationship such as innkeeper-guest or restaurateur-patron. … Thus, while the NIIA’s exclusive remedy provision cannot bar a guest or a patron from suing in court for negligence on facts analogous to these, the NIIA limits an employee’s remedy to workers’ compensation.

Baiguen v Harrahs Las Vegas LLC, 134 Nev. Adv. Op. 71 (2018)

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

* McKinnon v Burtatowski [1969] VR 899 (Vic., 1968); Lorelai Laird, ‘Bad Samaritan’, 104(6) ABA Journal 16 (2018)

What did you know?

A constantly vexing question for plaintiff lawyers is when a person’s liability for another’s drunkenness kicks in.

On June 2011 four young men threw a party in Boulder, Colorado. It must have been a good one, because it attracted many people beyond the invitees. One such person was 20-year-old Hank Sieck, who attended with Jared Przekurat. They were friends of a friend of a friend of the organisers (no, really).  Alcohol was served and Sieck became drunk. He and Przekurat left in the latter’s car, with Sieck driving. Inevitably an accident occurred, causing Prezkurat severe brain injuries.

SIECK-157091
Hank Sieck (Image from here)

Sieck was imprisoned for four years and ordered to pay restitution to Przekurat of $833,194.10: People v Sieck, 351 P.3d 502 (Colo. Ct App., 2014). Prezkurat sued the party organisers. Colorado’s Dram Shop Act (12-47-801, CRS (2017)) provides at (4)(a)(I) that

No social host who furnishes any alcohol beverage is civilly liable to any injured individual … for any injury to such individual …, because of the intoxication of any person due to the consumption of such alcohol beverages, except when … It is proven that the social host knowingly served any alcohol beverage to such person who was under the age of twenty-one years or knowingly provided the person under the age of twenty-one a place to consume an alcoholic beverage.

The District Court summarily dismisses the claim, finding that a social host must actually know a guest is underage to sustain dram shop liability. The Court of appeal agreed: Przekurat v Torres, 2016 COA 177. Przekurat appealed to the Supreme Court of Colorado.

The Supreme Court agreed with the District Court. It found, firstly, that the requirement to act knowingly applied both to provision of a place to drink and also the (under)age of the drinker.

[T]he provision of a place to provide for consumption of alcohol must be done knowingly, as it is difficult to conceive how a social host could unknowingly provide a place for alcohol consumption and still be considered a social host. To conclude that “knowingly” only modifies the act of providing the space would thus make that word superfluous in the statutory scheme.

The next question for the Court was whether the host must actually know the drinker’s age or whether constructive knowledge would suffice. Specific knowledge was found to be required under the norms of statutory construction –

Affording “knowingly” its “plain and ordinary meaning,”…, we conclude that actual knowledge is required. When the General Assembly imposes a constructive knowledge requirement, it typically provides that a person “should have known” of a particular thing. … Statutory interpretation in Colorado has consistently construed the words “know” or “knowingly” without that qualifying “should have known” to require actual knowledge.

Przekurat’s claim was dismissed.

Przekurat v Torres, 2018 CO 69

Who let the dogs out?

I have a pet theory that the period from 28 February 1991 to 10 September 2001 was “history’s long weekend”.  But despite the general laid-back feel of the era, some serious questions needed answering.  The Baha Men, for instance, asked –

Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?

We now know the answer.  And thanks to the Supreme Court of Vermont, we also know where the fault lay.

who-let-the-dogs-out-back-in-the-90s
Image from here

On 15 January 2016 the Flores family went to the home of the Pearo family. The Pearos has invited the Flores to let themselves in and left the door unlocked. As the Flores’ son opened the door, the Pearos’ three dogs (later claimed to be pit bulls) bolted from the house. The dogs ran up to passerby Eric Gross. They attacked his dog and grabbed the man’s arm, dislocating his shoulder.

Gross commenced proceedings in the Vermont Superior Court, alleging that the Pearos’ landlord and the Flores’ had negligently failed to control or restrain the dogs. The defendants sought summary dismissal of the case which was granted. Gross appealed.

The key question on appeal was whether either defendant owed a duty of care to protect third parties off the premises from harm caused by the Pearos’ dogs.  The Supreme Court of Vermont said no. The landlord had a duty to

… take reasonable steps to protect persons outside the land from injuries caused by a tenant’s dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons. … By permitting a tenant to keep a dog that the landlord knows to be vicious, the landlord could be viewed as having created the risk that led to the third person’s injuries. … Requiring the landlord to exercise due care to protect the public in such a situation is consistent with the general duty of care owed to the public by a landowner who personally carries on unreasonably dangerous activities on his or her land.

The plaintiffs did not offer evidence that the landlord knew or should have known of a vicious tendency in the dogs.

The court accepted for the sake of argument that the Flores’ were the dogs’ keepers at the relevant time. Vermont law considered keepers to face the same standard of care as owners of dogs. That is, they are not liable for injuries to persons unless they have some reason to know the animal is a probable source of danger.  When an owner or keeper knows a dog is dangerous, they must “exercise reasonable control and restraint” of the
dog to avoid injury to others. The case against the Flores’ failed for the same reason as the case against the landlord: they did not know the dogs were a danger to anyone.

Interestingly, the court took time to consider pit bulls are an inherently dangerous breed, stating that

this Court has never held that a dog’s breed alone is sufficient to put its owners or others on notice that it poses an unreasonable risk of harm, or that pit bulls or other breeds are dangerous per se. In Vermont, liability in dog-bite cases has always depended on the propensities of the individual animal.

Gross v Turner and Flores, 2018 VT 80

Evidence: it’s rather useful

I once saw an Articled Clerk appearing for a plaintiff in a mention before the Melbourne Magistrates Court.  The Magistrate asked her “what’s the estimated duration of the hearing?”

AC: “I don’t have instructions on that, Your Honour”

Court: “Well, how many witnesses do you intend to call?”

AC: “We don’t propose to call any, your honour” [presumably the actual strategy was to negotiate at the door of the court]

Court (looking curious): “ok … how do you propose to prove your case if the defendant exercises its right not to call any witnesses?

A recent appeal out of California suggests how such a scenario might play out.

evidence
Image from here

You don’t expect to come out of a yoga class injured. Relaxed maybe. Even chilled out. But not injured. It isn’t work out that way for Ms Webster. During a yoga class on 11 October 2014 her position was twice adjusted by the instructor. She alleged that these adjustments injured her neck. She sued the school operators alleging negligence.

The defendant sought summary dismissal of the claim which was granted: Webster v Claremont Yoga (L.A. Co. Sup. Ct, Nieto J, 3 October 2016, unreported).  The plaintiff appealed.

The Court of Appeal noted the need for expert evidence in cases of professional negligence, unless a matter lay within a jury’s common experience.   The only expert evidence available in this case was supplied by the defendant.  It said that he had observed the relevant standard of care.

Plaintiff argues that an expert’s testimony is not determinative, even when uncontradicted, because a jury may reject it. … But even if a jury rejected Simons’s opinion, plaintiff would still have the burden affirmatively to establish the applicable standard of care and a breach thereof, which she cannot do without an expert. In the absence of an expert, she could not show a triable issue of material fact, and defendants were entitled to summary judgment.

The court went on to consider the plaintiff’s doctor’s notes, which recorded complaints of  injury which she associated with yoga.  These were not considered sufficient to raise a causation issue for a jury to resolve.

Webster v Claremont Yoga (Calif. Ct of Apeal, 31 July 2018)

Obscuring the drivers’ vision

Recently I shared a decision from the Coroners Court where a tree shading a streetlight contributed to a road death.  A recent case from Kansas has taken a different approach to the obligations of owners of trees.

It was mid-afternoon on 14 September 2011, and Darren Manley was driving north on Anderson Road in Labette County, Kansas.  At the same time a truck driven by John Patton was being driven west on the intersecting County Road 20000.  Trees growing on land adjoining the intersection obscured the drivers’ view of each other.  Manley was killed in the resulting collision.

Labette
Rural road, Labette County, KS (Image from here)

Mr Manley’s estate sued the owners of the land where the trees grew.  It was alleged that they had wrongfully caused his death by allowing the trees to obstruct the vision of passing motorists.  The owners sought summary dismissal of the claim which was granted by Labette County District Court.  The plaintiff’s appeal to the Court of Appeals was also dismissed: Manley v Hallbauer, 387 P. 3d 185 (2016).  They further appealed to the Supreme Court of Kansas.

The Supreme Court rejected the appeal, finding that the landowners had no duty of care.  It noted that any duty of care would need to be consistent with public policy.  Kansas common law reflected a public policy not to impose tort liability on persons in the position of the landowners in this case.

As our primary policy consideration, this court adheres to precedent “‘unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.'” …. Manley does not persuade us to abandon the traditional rule that a landowner owes no duty in the circumstances of this case. We conclude the determination of the existence of duty is better resolved by following our precedent that embraces the traditional rule, especially because of the public policy that underlies that rule.

The Court duly concluded that “a landowner whose property abuts a rural intersection owes no duty to passing drivers to trim or remove trees or other vegetation on the property”.

Manley v Hallbauer (Supreme Court of Kansas, 10 August 2018)

Who owns the mosquitoes?

The Body Shop used to sell bags saying something like “if you think you’re too small to be noticed, go to bed when there’s a mosquito in the room”.  Apparently they were right.

William Nami was a railway worker whose job was to work in a team operating a ‘tamper’ (a machine for repairing railway lines). Sometimes he worked inside the machine’s poorly-sealed cabin, and sometimes outside. Unfortunately, the area in which he worked was mosquito-infested town of Sweeny in Brazoria County, Texas.  The railway’s right of way was narrow and weed-strewn and sometimes had pools of water.  In late September 2008 Nami was diagnosed with West Nile virus and suffered significant ill effects.  He sued his employer under §51 of the the Federal Employees Liability Act:

Every common carrier by railroad  … shall be liable in damages to any person suffering injury while he is employed by such carrier … for such injury … resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.

He alleged that the employer had failed to provide a safe workplace.  A jury at trial found tat the employer had been negligent and awarded damages: Nami v Union Pacific Railroad Co. (267th District Court, Koetter J, 2012, unreported).  The employer’s appeal to the Court of Appeals was rejected: Union Pacific Railroad Co v Nami 499 SW 3d 452 (Tex. Ct App., 2014).

Mosquito Day
Image from here

Union Pacific appealed to the Supreme Court of Texas.  The Supreme Court noted that insects are considered to be wild animals (ferae naturae) and

… under the doctrine of ferae naturae, a property owner owes an invitee no duty of care to protect him from wild animals indigenous to the area unless he reduces the animals to his possession, attracts the animals to the property, or knows of an unreasonable risk and neither mitigates the risk nor warns the invitee. … The same rule applies to an employer’s duty to provide a safe workplace.

In this case the employer had done nothing to increase (and could have done nothing to decrease) the risk of mosquitoes to Mr Nami.  Accordingly negligence was not made out.

Union Pacific Railroad Co v Nami, 498 SW 3d 890 (Tex., 2016)

Postscript – The Supreme Court of the United States declined to hear Nami’s appeal: Nami v Union Pacific Railroad Co., 137 S.Ct. 2118 (2017).

 

Streetlights and Trees

Local councils seem to be fond of trees.  Apparently, so much so that allowing them to disable public infrastructure is uncontroversial. Until it causes a death.

The sun had set about half an hour before Mary Fillipas got off the bus in Station Street, Burwood on 8 May 2017.  The bus stop was adjacent to Talbett Street.  Fillipas, aged 75 years, was slowly crossing Station Street just after the crest of the road.  A driver approaching from the other side of the crest saw her in his headlights at the last minute and braked.  He could not avoid hitting her.  She died of her injuries some weeks later.

bus stop
Image from here

Police determined that the driver bore no criminal liability for the death.  The police noted that although there were two street lamps in the vicinity of the collision, a large tree blocked most of the light from one.

Mrs Fillipas’ death was investigated by the Coroner.  In the investigation the local government body (Whitehorse City Council) submitted that street lighting in the area was adequate and that the tree was healthy and maintained in line with legislation and appropriate standards.  The Council and a number of other agencies also recommended moving the bus stop to the top of the crest to improve visibility of people crossing Station Street after getting off the bus.

The Coroner agreed with the proposal to move the bus stop.  Her Honour also recommended the Council consider removing suitable trees to ensure overhead lighting was not affected.

In the Death of Fillipas (Coroners Ct of Vic., Hodgson C, 27 July 2018, unreported)

Not naked in Tel Aviv

On 31 August 2015 a traveller booked an air ticket from Freetown to Tel Aviv. The airline mis-tagged his luggage which was lost en route. He bought replacement clothing in Tel Aviv during his stay from 9 to 21 September 2015.

The traveller sued for general and special damages in the High Court of Sierra Leone. The court found that the Warsaw Convention 1929 had been given statutory force in Sierra Leone in 1968 and so strict liability applied.

1280px-Freetown_International_Airport
By Kipp Jones – Flickr: Freetown airport, CC BY-SA 2.0,

The plaintiff claimed (inter alia) special damages in the form of the cost of replacing clothing and personal effects lost with his luggage.  He particularised his loss at $500 USD.  He was not able to produce receipts or other evidence.  The defendant argued that absence such proof the claim should be rejected, citing Jaber v Basma (1952) 14 WACA 140.  The Court disagreed:

[It] has been proved that the Plaintiff lost his luggage whilst in the custody of the Defendant and that he stayed in Tel Aviv for a period of 12-13 days without receiving it. In such a situation one need not be a magician to conjure that the Plaintiff would need to buy clothes and related items for his daily use. … Counsel for the Defendant has argued that since the loss had not been specifically proved, the claim must not be countenanced by this Court. My response to that submission is to ask whether it would serve the interest of justice to do so? It has not been disputed that the Plaintiff stayed in Tel Aviv for 12-13 days without his luggage and as such the Plaintiff must have procured some clothes to use. It will be most unreasonable to believe that he used the clothes he traveled in for that period. In the circumstance, I hold that the Plaintiff is entitled to special damages based on the special circumstances of this particular case.

Twenty-five per cent interest was ordered to be paid on the special damages from from 10 September 2013 to the date of judgment.

Nicol v Air Maroc (Koroma J, High Court of Sierra Leone, 10 October 2015, unreported)