Probably not Grandpa Simpson

He was probably an A-hole even before he got sick.

Kymberli Gardner worked at the Plaza Community Living Centre from 2012-2015.  From 2006-2014 a certain elderly man was a resident of the home.  His medical conditions included dementia, traumatic brain injury, Parkinson’s disease and personality disorder with aggressive behaviour. He had a history of showing violence (including sexual violence) to patients and staff.

Abe Simpson.jpg
Image from here

Gardner was repeatedly the subject of the man’s attentions. Her employer made only minimal and ineffective steps to manage him. She reached breaking point in a final incident of assault on her and two other nurses.  She refused to provide further care to him.  She sought medical care for her injuries and lodged a workers compensation claim. On returning to work her employment was terminated. As a result of a subsequent incident the patient was sent to an all-male unit elsewhere.

Gardner sued, alleging a hostile work environment and retaliation. The US District Court for Southern Mississippi dismissed her claim: Gardner v CLC of Pascagoula LLC (US Dist. Ct, S.D. Miss., Guirola CDJ, 6 February 2017, unreported).  She appealed.

The 5th Circuit Court of Appeals accepted that Gardner’s experience could constitute severe and pervasive harassment. The employer was not permitted to wash its hands of the resident’s conduct, notwithstanding that he was medically unable to act appropriately.

Inappropriate comments and incidental contact are sufficiently common behaviors among patients with reduced cognitive ability that it is not objectively reasonable for a caregiver to expect they will never happen. In contrast, the facility must take steps to try to protect an employee once there is physical contact that progresses from ooccasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm.

Liability based on the behaviour of someone not a supervisor depended on whether the employer knew or should have known of the hostile environment and took reasonable measures to try to abate it.  The court noted that other care homes had avoided liability by actions like –

  • providing a security escort
  • reassigning the employee
  • offering to remove the patient from the home.

The District Court judgment was reversed and the matter remanded for further proceedings.

Gardner v CLC of Pascagoula LLC (US Fifth Circuit Court of Appeals, 29 June 2018)

When Crayons beat Ball Points

This post is my somewhat belated contribution to #PracticeTuesday, and it’s probably most relevant to practitioners in criminal law, personal injury and family law.

One word: pencils.

A few weeks ago I tried with difficulty to conduct a conference with a client which his four year old son.  My office isn’t well stocked with things for children and so I tried to leave him entertain himself with a notepad and a ballpoint.  It wasn’t a success.  I didn’t blame the little tyke of course.  He was bored.  Sometimes being in a lawyer’s office bores me too. Some days, if I wasn’t being paid to be here, I’d arc up myself!

After that appointment, the first place I went was Officeworks to get a packet of good sturdy pencils and a sharpener.  When Mr Bloggs and his son came back to the office yesterday, I googled “lawyer colouring sheets”. This was not a success.  Most of the images were not really age appropriate.  Some were, well, kinda scary:

lawyer-drawing-1
Image from here

Instead, I drew on the other half of my life and googled “State Emergency Service colouring sheets”.  This was much better.  A few mazes and pictures of rescue vehicles kept the client’s munchkin happy for the hour or so of the conference.

Colouring 1
Image from here

If your practice regularly means your clients bring their kids to appointments, never underestimate the value of a $4.00 box of pencils.

A tragedy in Paradise

Road accident lawyers sometimes fall into the lazy trap of thinking that because there’s a problem in a vehicle, negligence is a given.  A recent case from the Pacific islands offers a reminder about thinking through causation.

On 12 September 2011, a truck driven by a member of Kiribati Protestant Church on church business hit a young girl who ran across the road.  The accident caused her fatal injuries.  Because of rain, the vehicle was travelling at 20-30 kilometres (12-18 miles) an hour.  The uncontested evidence of the driver was that the child had run in front of the vehicle suddenly.  The police investigation found that the truck’s breaks were defective and had to be pumped to operate.

So Tarawa
South Tarawa, Kiribati (Image from here)

The defendant was charged with dangerous driving causing death: Traffic Act 2002 (Kiribati), §31

The driver of a motor vehicle must not drive the vehicle on a road recklessly or in a manner dangerous to persons using the road.

Penalty:

… (c) for an offence causing death – a fine of not more than $2,000 or imprisonment for not more than 5 years, or both.

He was acquitted on the basis that (inter alia) there was no evidence that the defective brakes had contributed to the accident.  There had been no time to brake before impact: Republic v Mikaere (Zehurikize J, High Court of Kiribati, 10 November 2016, unreported).

An appeal was lodged on the basis that the verdict was against the weight of evidence, in particular the “finding that the evidence did not establish that the respondent had driven in a dangerous manner by driving when he knew the brakes to be defective”.

The Kiribati Court of Appeal noted the trial judge’s finding that the deceased had run suddenly in front of the truck and that –

The defective brakes played no part in the accident. The respondent had no opportunity to apply the brakes until after impact. We note that when he did so he stopped 10 metres further on, confirming that he was driving at a moderate speed and was able to brake effectively.

The appeal was dismissed.

Attorney-General v Mikaere (Kiribati Court of Appeal, Blanchard, Handley and Hansen JJA, 16 August 2017, unreported)

Ex Africa semper aliquid novi

Nobody really won on 25 July 2005.

In a town in South Africa on the night I mentioned, Mr Shavhani Ramusetheli was shot in what may have been a robbery.  Four men were charged with murder, robbery and attempted murder.  In the Limpopo High Court, one of the men was convicted of murder and aggravated robbery.  The sole evidence against him was an extra-curial statement by one of his co-accused exculpating himself and incriminating the others –

In that statement, the first accused alleged that he was party to a conspiracy involving his co-accused in terms of which it was agreed that they would rob the deceased of his money. He alleged that his role was to point out the deceased’s homestead to the second and third accused whilst the fourth accused’s role was to supply the firearm to be used during the robbery. The appellant drove them to the deceased’s home in a Toyota Venture motor vehicle owned by the appellant’s employer. The first accused said that he was an unwilling participant in this escapade but was compelled to participate for fear of reprisal at the hands of his co-conspirators and in particular the fourth accused. He went on to allege that it was the second accused and the appellant who committed the offences with which they were charged and that the former was the one who pulled the trigger. In his testimony at the trial, the first accused in substance regurgitated the contents of his statement.

Mulaudzi v S (Theron, Petse and Willis JJA, Supreme Court of Appeal of South Africa, 20 May 2016, unreported)

The man with whom we are concerned was sentenced to imprisonment for life for murder and to 20 years imprisonment for robbery: S v Mushweu & Ors (Limpopo High Court, Makgoba AJ, 22 August 2005, unreported.

LP High court
Image from here

The defendant appealed to the Supreme Court of Appeal.  The matter took over a decade to be dealt with, largely for reasons outside the appellant’s control.  Lewis and Saldulker JJA and Mothle AJA noted that the common law principle that

admissions made extra-curially were not to be used against a co-accused. … [S]ince any out-of-court statement by a co-accused would compromise the constitutional right to a fair trial, it should not be admissible against an accused.

The Court upheld the appeal and set aside the conviction.  A verdict of acquittal was entered in its place.

Ndwambi v S, The South African, 20 June 2018.

 

The SCOTUS Nomination: Two Antipodean Cents

It seems that every lawyer I know (in the United States or not) has an opinion on who should be nominated to replace Kennedy J on the Supreme Court of the United States.   May I take this moment to offer my own two cents on the matter before President Trump names his nominee tomorrow at 11am AEST?  And incidentally, up until a few years ago, it was, literally, possible in this country to throw in one’s own two cents –

1990 Australia 2 Cents copy
Image from here

It is not overly surprising that a startling amount of commentary from liberals and conservatives has hinged on the likelihood of His Honour’s replacement joining a majority to overrule the decision in Roe v Wade 410 US 113 (1973).  Despite this, it is hard not to feel that many of the commentators are missing the point.  As Mr Justice Scalia observed with a touch of bitterness, the Court’s usual business rarely involves the great moral issues of our time, but overwhelmingly issues that only a lawyer could be interested in: the tax code, the rules of civil and criminal procedure, ERISA and so on.  Moreover, constitutional jurisprudence out in this little colony suggests that assumptions about how this or that judge will decide are as reliable as tosses of a coin.

What do I mean?  In the 1970s the Whitlam government enacted the Senate (Representation of Territories) Act 1973.  The effect of this Act was to enable the Northern Territory and Australian Capital Territory to be represented by two senators each: previously only Australia’s States had been represented in the Senate.  The States objected to this dilution of their voting power on the grounds that it breached the Australian Constitution.  On one hand, §7 of the Constitution stated that –

The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. [emphasis added]

On the other, §122 said that –

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth … and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Which section controlled?  A challenge was brought in Western Australia v The Commonwealth (1975) 134 CLR 201.  The Act was upheld by a majority consisting of McTiernan, Mason, Jacobs and Murphy JJ.  In a distasteful passage (at p.270) Mason J took it upon himself to declare the clear wording of §7 outmoded and that the Parliament’s powers in §122 had (apparently magically) expanded.  Barwick CJ, Gibbs and Stephen JJ dissented.

In the following years the composition of the Court changed: the elderly (generally pro-Commonwealth) Edward McTiernan retired, replaced by the more conservatiuve Keith Aickin.  Fairly predictably, a fresh challenge to the election of Territory senators was brought: Queensland v The Commonwealth (1977) 139 CLR 585.  A successful challenge was a foregone conclusion with the minority from the previous case – Barwick CJ, Gibbs and Stephen JJ – now joined by Aickin J.

Except it wasn’t.  Gibbs and Stephen JJ “flipped their votes” and declined to overrule the earlier decision.  Gibbs J said (at p.599):

No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.

Many reasonable people of good will may well be hoping for the sun to set on Roe‘s case.  They may be disappointed.

The War got in the way

One of the beauties of law reports is that every so often you stumble across a long-forgotten case that you would otherwise never consider. This happened to me recently, when I found a case where the war got in the way of a plaintiff.

The case might be one of the earliest motor-accident injury claims. In the early twentieth century a lady named Wilkie was sitting in a jinker (a type of horse drawn buggy). The jinker was hit by a bus operated by the Melbourne Motor-Bus Co Ltd. She brought proceedings in the County Court of Victoria for her injuries. The jury rejected the claim and found for the defendant.

jinker
Horse and jinker (Image from here)

The plaintiff applied for a new trial. Before her application could be heard, she learned that some of her witnesses – soldiers in the Australian Army – were to leave the state on 4 April 1916 (one might infer that they were to leave for the War). On 3 April 1916 she applied to the Supreme Court of Victoria for an order for their oral examination. Section 4 of the then Evidence Act 1915 relevantly provided that

It shall be lawful for the Supreme Court … in any action or suit depending … in any county court … upon the application of any of the parties to such action or suit to order the examination on oath upon interrogatories or otherwise before some person to be named in such order of any witnesses within Victoria … ; and by the same or any subsequent order … to give all such directions touching the time place and manner of such examination … and all other matters and circumstances connected with such examinations as appear reasonable and just….

The modern analogue of this section is §4 of the Evidence (Miscellaneous Provisions) Act 1958.

1912_Daimler_CC_bus
Bus belonging to the defendant (Image from here)

A’Beckett J dismissed the application on the grounds that he had no jurisdiction. His concern seems to have been that because jury in the case at first instance had dismissed the claim, there was no pending case (presumably, at least, not until the plaintiff had successfully sought a new trial).

Wilkie v Melbourne Motor-Bus Co Ltd [1916] VLR 211

Protection on costs

A recent change to the law in Victoria may be to the advantage of plaintiffs in that State.

On 29 May 2018 the Justice Legislation Amendment (Access to Justice) Act 2018 received royal assent. The Act amends the Civil Procedure Act to clarify the courts’ power to make protective costs orders by fixing the costs of a proceeding in advance. Section 65C of the Civil Procedure Act now says (with the amendments marked in red) –

(1) In addition to any other power a court may have in relation to costs, a court may make any order as to costs it considers appropriate to further the overarching purpose.

(2) Without limiting subsection (1), the order may—

(a) make different awards of costs in relation to different parts of a proceeding or up to or from a specified stage of the proceeding;
(b) order that parties bear costs as specified proportions of costs;
(c) award a party costs in a specified sum or amount;
(d) fix or cap recoverable costs in advance.

(2A) In making an order under subsection (1) to fix or cap recoverable costs in advance, the court may consider the following matters—

(a) the timing of the application;
(b) the complexity of the factual or legal issues raised in the proceeding;
(c) whether the party seeking the order claims damages or other form of financial compensation;
(d) whether the claim of the party seeking the order has a proper basis and is not frivolous or vexatious;
(e) the undesirability of the party seeking the order abandoning the proceeding if the order is not made;
(f) whether there is a public interest element to the proceeding;
(g) the costs likely to be incurred by the parties;
(h) whether the other party has been uncooperative or delayed the proceeding;
(i) the ability of the party seeking the order to pay costs;
(j) whether a significant number of members of the public may be affected by the outcome of the proceeding;
(k) whether the claim of the party seeking the order raises significant issues as to the interpretation and application of statutory provisions.

(3) An order under subsection (1) may be made—

(a) at any time in a proceeding;
(b) in relation to any aspect of a proceeding, including, but not limited to, any interlocutory proceeding.

Personal injury plaintiffs tend to be impecunious and an adverse costs order can be catastrophic.    However, their cases often raise legal issues that need to be aired.  A protective costs order can go a long way to ensuring that cases with merit are heard.

Failure to predict.

It’s hard to imagine that a police sergeant or bail justice could have predicted what would happen later.

It’s not clear how he was released.  In the afternoon or evening of 15 March 2017 one Macarthur was drunk and randomly punching at passengers at a Melbourne railway station.  He was arrested.  At about 10:00pm on 15 March 2017 he was released from police custody.  Seven hours later – at about 5am – he met a young woman at a tram stop.  He followed her onto – and off – the tram.  He accosted and raped her near a hospital.

The Crimes Act 1958 (Vic) §38 relevantly provides that –

(1) A person (A) commits an offence if—

(a) A intentionally sexually penetrates another person (B); and

(b) B does not consent to the penetration; and

(c) A does not reasonably believe that B consents to the penetration.

(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

(3) The standard sentence for an offence against subsection (1) is 10 years.

The offender pleaded guilty before Judge Lawson in the Melbourne County Court.  Her Honour considered the crime to have been brazen and predatory.  She imposed a sentence of seven years and nine months, to serve a minimum of five years.  He had already served 15 months on remand.

Director of Public Prosecutions v Macarthur (2018) Herald Sun, 2 June 2018, p.21

What do you mean “dangerous”?

Tewksbury, Massachusetts isn’t a big place. It still generated an interesting appeal on public liability though.

On 20 January 2012 Eileen Potvin and her boyfriend stopped to get fuel at a service station in Tewksbury. While her boyfriend was paying for the fuel she went looking for a squeegee to clean the windshield. She began to walk towards the car backwards (for reasons which were not explained). The heel of her shoe caught in a groove in the paving. She fell and was injured. The groove was part of a legally mandated barrier designed to catch fuel spills.

1907 Andover Street, Tewksbury MA (Image from here)

Potvin sued the operator of the service station. She alleged that the groove was a hazardous condition of the premises and that the operator had failed to warn of them.  She conceded however that they were open and obvious to the average poerson.  The defendant sought summary dismissal of the claim, which was granted by the US District Court for Massachusetts: Potvin v Speedway LLC, 264 F. Supp 3d 337. Potvin appealed.

The Court of Appeals for the First Circuit noted that it was common ground that  Massachusetts law applied. The Court accepted that a landowner generally owes a duty to protect lawful visitors from dangerous conditions. In practical terms, however, they need only maintain the premises to a standard that would be safe to a person exercising the minimum care required in the circumstances.

Under Massachusetts law, property owners are relieved of any duty to warn of open and obvious conditions, including those that present open and obvious dangers, since it is logical to expect that a lawful visitor exercising reasonable care for her own safety would not fall victim to such “blatant hazards.”

Because the grooves were open and obvious, the defendant was not obliged to warn visitors about them.

The plaintiff also contended that the defendant had a duty to remedy the danger presented by the grooves, on the basis that there was a heightened reason to foresee that even though the hazard was obvious an open, it presented a danger likely to cause harm.  This argument was also rejected.  She suggested signs and brightly coloured paints as remedies.  The court retorted that –

warnings are not remedies. … [A]llowing a plaintiff to conflate warnings with remedies would frustrate settled doctrine. … Where, as here, the plaintiff does not propose a feasible remedy, a property owner cannot be held to answer for a putative duty to remedy.

The appeal was dismissed

Potvin v Speedway LLC (2018) US First Circuit Court of Appeals, 4 June 2018

The Fourth is not with you

One of the more difficult parts of a personal injury lawyer’s job is explaining to the victim of tragedy that they don’t have a case.  The Fifth Circuit of the US Court of Appeals has to do the same thing.

On 21 January 2015 John Gorman was undertaking firearms training connected with his work for the Mississippi Gaming Commission.  Fellow instructor Robert Sharp forgot to replace his own real firearm with a dummy firearm.  In the course of training he shot Gorman in the chest causing fatal injuries.

loaded
Image from here

Gorman’s widow sought compensation from Sharp on the grounds that he had violated the American Constitution’s Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….

Sharp’s application to dismiss the proceedings was denied by the US District Court: Gorman v State of Mississippi, 258 F.Supp.3d 761 (2017).  He appealed to the Fifth Circuit Court of Appeals.

The appeal was upheld.  Existing case law had consistently said that there is no liability under the Fourth Amendment absent deliberate and intentional conduct.  In this case it was undisputed that Sharp genuinely believed he was using a dummy firearm and had not shot Gorman wilfully.  The court observed sadly that –

The circumstances that led to this lawsuit are unquestionably tragic — an accidental fatal shooting during an officer training session. But the Constitution does not afford a cure for every tragedy.

The District Court’s decision was reversed.  It was noted that the plaintiff was also pursuing a claim in State law.

Gorman v Sharp (2018), US Fifth Circuit Court of Appeals, 6 June 2018.