Towelie is not a role model

South Park devotees will no doubt remember the character Towelie, a drug-addicted towel with a surprisingly annoying personality.  One of his scenes was essentially a model for a recent case in Texas (and after you’ve watched it, maybe watch a few other cartoons, because today’s casenote is kind of depressing).

On 10-11 April 2016 Karalee Williams made nine visits to a Walmart store in Houston, Texas.  Each time she bought tins of dust removing spray.  She bought at least sixty tins of spray, each time returning to her car in the parking lot to inhale it.  On her second visit to the store she was noticed to have soiled herself and to have vomit in her hair.  On her third visit she was naked from the waist down.  The staff gave her a sundress and otherwise continued to serve her.  On the morning of 12 April 2016 she died of an overdose of Difluoroethane inhaled from the tins.

Karalee Williams
Karalee Williams (Image from Facebook).  Personal injury lawyers – plaintiff and defendant – can get awfully jaded.  Sometimes we forget that real people are at the heart of what we do. Photos remind us that every litigant is a person who ended up somewhere they never wanted to be.

Williams mother sued the store operator and a number of other parties.  Proceedings were commenced in the 11th Harris County District Court.  They were removed to the US District Court for the Southern District of Texas.  The plaintiff, represented by Jeffrey Steidley, relied on a number of grounds to establish negligence.  Several grounds relied on Texan statutes, but one in particular may be of general interest to common lawyers: the plaintiff alleged that the defendant’s employees had assumed (and breached) a duty when they took steps to assist the deceased by providing her with a towel and a sundress.

Walmart (represented by Daw & Ray LLP) sought dismissal of the claim, which was granted.  The plaintiff appealed to the Fifth Circuit Court of Appeals.

The appeal was dismissed.  Concerning the allegation of negligence mentioned above, the Court agreed that a duty to use reasonable care could arise where –

  1. A undertakes to perform services necessary for B’s protection
  2. A fails to exercise reasonable care in performing those services; and either –
  3. B relied upon A’s performance, or
  4. A’s performance increased B’s risk of harm.

Here there was  no allegation that Walmart’s staff had caused Williams to rely on them or that they had increased her risk of harm.  As a result no duty of care arose.

Allen v Walmart Stores LLC, 907 F.3d 170 (5th Cir., 2018)

The neighs have it

An animal cruelty case recently came before Shepparton Magistrates Court.

In June 2018 horse trainer Pauline Brodie’s property was inspected by officers of the Royal Society for the Prevention of Cruelty to Animals (RSPCA).  Ten of the horses in her care were found to be in poor condition.  Three others required veterinary assistance.  The horses were subsequently relocated by Harness Racing Victoria.

Brodie was charged with two breaches of §9 of the Prevention of Cruelty to Animals Act 1986.  The Act relevantly provides that

A person who …

(f) is … the person in charge of an animal which is confined or otherwise unable to provide for itself and fails to provide the animal with proper and sufficient food, drink or shelter; or …

(i) is … the person in charge of a sick or injured animal and unreasonably fails to provide veterinary or other appropriate attention or treatment for the animal; …

commits an act of cruelty upon that animal and is guilty of an offence and is liable to a penalty of not more than, in the case of a natural person, 250 penalty units or imprisonment for 12 months or, in the case of a body corporate, 600 penalty units.

The matter was dealt with before Stuthridge M.  Ms Wendy Gutteridge appeared for the prosecution.  The defendant was represented by Mr Markorius Habib of counsel.  It was submitted that the defendant had been going through a difficult relationship breakdown, had struggled financially to care for the horses and had experienced significant humilation as a result of the incident.

The defendant was sentenced to a one year good behaviour bond without conviction and ordered to pay $500.00 to the Court fund.

RSPCA v Brodie (2019), Shepparton News, 2 July 2019 at 5

How to find case law

Something interesting has happened in legal education.  When I started my degree back in the mid-1990s, one of the first things covered was how to find a case in published law reports.  Somewhere along the line this seems to have dropped off the curriculum in favour of wholesale use of online databases like Austlii.  This is a shame, because while electronic resources are very convenient, not everything has been digitised.  British case law, in particular, is gathered at Bailii but includes old cases only in a very scrappy manner.  In addition, online cases very seldom include a headnote – the case summary that is a gift to time-poor lawyers who need to get a handle on something quickly.  If you’ve never seen a headnote, take a look at this website, for which I wrote dozens of them.

Because this has become a bit of a gap in the legal skill set, I ran a quick course for my colleagues Amila, Sarah and Tremayne today up at the Supreme Court Library.  This post is mainly the notes of that course: I thought they might be useful for other lawyers out there.

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Supreme Court Library, Melbourne, Australia

This note covers the two most commonly used Anglo-Australian systems of case citation. American, Canadian and South African cases use somewhat different systems, and there’s a special system for English cases from before 1873.

First System

The first system we’ll talk about tends to be preferred by Australian report series.  A case citation will look like this –

Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387

The key thing is that if the year is written in round brackets, then you don’t need to know it: it’s there only to tell you the year the case was decided.  The details you really need to know are are –

50           The volume in of the series of law reports

CLR      The series of law reports.  In this case, the Commonwealth Law Reports, covering the reports of the High Court of Australia and (occasionally in the past) Privy Council appeals from Australia.

387         The page of the reports where the report begins.

The case referred to, incidentally, is sometimes called the Woolen Underwear Case.

Second System

The second system tends to be used for British cases.  It looks like this –

McLoughlin v O’Brian [1983] 1 AC 410

If the year is in square brackets, you need to know it.  The key details are –

[1983]  The year the case was reported.  This will be how the volume of cases is identified.

1              If there were several volumes of that report series that year, this is the number of the volume.

AC         The series of law reports.  AC stands for Appeals Cases and covers reports of the House of Lords (now the UK Supreme Court) and Privy Council.

410        The page on which the report starts

Amila chasing The Winkfield [1902] P 42

Common series of law reports

Some of the most common series of reports for Australian lawyers are –

AC         Appeals Cases.  House of Lords (now the UK Supreme Court) and Privy Council

ALR      Australian Law Reports.  High Court and other cases mainly concerning Federal law.

CLR      Commonwealth Law Reports.  High Court of Australia and (occasionally formerly) the Privy Council

FLR      Federal Law Reports.  Self explanatory.

QB         Queen’s Bench. Reports of the English Court of Appeal.  (KB – King’s Bench – before 1952)

SASR   South Australian State Reports

TLR      Times Law Reports.  A bit of a grab bag of old cases reported over the years by the Times of London.

VR         Victorian Reports.  Supreme Court and Court of Appeal.  Previously VLR (Victorian Law Reports)

WLR    Weekly Law Reports.  Decisions of English courts at all levels

All ER  All England Reports.  Decisions of English courts at all levels

Sarah finding Hill v CCWY [1989] AC 53

Challenge

If you’re training younger staff, you might like to set them the task of finding cases within a time limit and sharing a photograph of the first page of the judgment.  This list used in this exercise was

  • Duke of Wellington Gold Mining Company NL v Armstrong (1906) 3 CLR 1028

  • Hill v Chief Constable of West Yorkshire [1989] AC 53
  • Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

  • National & General Insurance Co Limited v Chick (1984) 2 NSWLR 86

  • R v Pittwood [1902] TLR 37
  • R v Russell [1933] VLR 59

  • R v Smith [1959] 2 QB 35
  • The Winkfield [1902] P 42

I was a little bit surprised by how competitive my colleagues were over this!

If you’re planning to run this exercise, it takes about an hour.  It should count for one CPD unit (Professional Skills).

Happy researching!

Everyone in the Gallery is a Lawyer

Arguments in the matter of Pell v R were completed today in the Court of Appeal here in Melbourne.  As one might expect, they’ve been followed closely by journalists and the public at large.  The court has reserved its decision.  My profoundest sense at this moment, however, is annoyance at the criticisms being leveled against Counsel for the Crown, Mr Chris Boyce SC.

supreme-court_logo

I have difficulty commenting on Mr Boyce’s performance.  I’m remarkably ignorant when it comes to things I know nothing about.  I’m an occasionally-competent litigation solicitor.  I’ve appeared in any number of procedural applications but have never run a trial.  It’s unthinkable that I’ll ever appear in an appeal.  And for that reason I don’t seel I’m qualified to assess anyone else’s performance.

Not everyone agrees, of course.

I have a major difficulty in matters of public importance: I’m aware of being ignorant when it comes to things I know nothing about.  I’ve certainly had a few dreadful times on my feet in court.  I’ve had a few of my submissions described as “remarkable” or “interesting” by the Bench ( “remarkable” and “interesting” are not words of praise). And on one memorable occasion in the County Court I heard a rambling incoherent voice droning on and then realised it was mine.  I certainly know that it’s no easy job.

You feel like critiquing an expert?  Fair enough.  Go get your law degree, qualify, join the Bar, reach its highest levels and run a couple of hundred appeals and trials and then you might be qualified to be an armchair quarterback.  Until then, you’re just another 130kg asthmatic sitting in the grandstand at the MCG shouting useful advice to professional athletes.

Workers’ Compensation as a Vocation?

My twitter feed is nothing if not diverse.  One of the feeds I’ve been especially enjoying lately is that of a young postulant describing her life in the convent.  She certainly loves her calling, and her posts got me to thinking whether I could be doing something more with my own life.

This in turn got me to thinking about vocations.  I know for sure that I have no calling to the priesthood.  But, I’ve always had fondness for the monastic life.  My honours thesis was written on St Bernard of Clairvaux.  The austerity of the Cistercians has a remarkable appeal.  There is, actually, a Cistercian abbey a bit over an hour from where I live.  Nevertheless, there’s not a lot of point exploring the cloister while my darling daughters are still young. The monastic life is unpaid, and there’s never a good time to leave your kids high-and-dry.

(To digress: can you imagine St Bernard of Clairvaux with a twitter account?  If you can’t, read a collection of his letters.  He’d have been incapable of shutting up and probably a pretty savage troll)

And then it crossed my mind that maybe what I’m doing now is my vocation.  That is, maybe being a worker’s compensation lawyer really is what God has called me to do.

Hear me out.

My family situation means I can devote most of my energies to work.  Possessions have very little hold over me:  I live in a single rented room in a lodging house.  I can’t imagine ever owning a house, or wanting to.  My belongings are really just my clothes, some books and a battered old car. My food intake is fairly basic: oats, vegetables, bread rolls and stuff out of tins.  The things I like best are cheap wine and good beer.  Fleshy desires are basically non-starters with me, partly by nature and partly by obligation.  My life, then, is already quite a pared-back thing.

So far, so good. I imagine some or all this could be said of quite a few people in the world. What changes it for me from a situation to a calling?

The Big Guy does.

Pope Leo XIII (image from here)

Pope Leo XIII issued Rerum Novarum in 1891.  He talked about the proper relationship of capital and labour and stated that –

wealthy owners and all masters of labor should be mindful of this – that to exercise pressure upon the indigent and the destitute for the sake of gain, and to gather one’s profit out of the need of another, is condemned by all laws, human and divine. To defraud any one of wages that are his due is a great crime which cries to the avenging anger of Heaven. … Lastly, the rich must religiously refrain from cutting down the workmen’s earnings, whether by force, by fraud, or by usurious dealing; and with all the greater reason because the laboring man is, as a rule, weak and unprotected, and because his slender means should in proportion to their scantiness be accounted sacred.

A big whack of my work goes into ensuring people receive proper weekly compensation under the Workplace Injury Rehabilitation and Compensation Act 2013.  With some insurers (naming no names) this can require negotiating tactics that border on “demanding money with menaces”.  I’d never before thought of it as work with a touch of holiness.

Sweatshop, c.1890 (Image from here)

On the plaintiff side I’ve almost invariably acted on “no win – no fee” terms.  That is, if the claimant does not recover compensation, my fees are waived.  This, too, seems to be approved by Rerum Novarum, inasmuch as help is provided to people who might otherwise go without:

when there is question of defending the rights of individuals, the poor and badly off have a claim to especial consideration. The richer class have many ways of shielding themselves, and stand less in need of help from the State; whereas the mass of the poor have no resources of their own to fall back upon, and must chiefly depend upon the assistance of the State. And it is for this reason that wage-earners, since they mostly belong in the mass of the needy, should be specially cared for and protected by the government.

Another big slab of my work involves ensuring workers compensation insurers pay what they are required to in terms of medical expenses.  Pope John Paul II touched on precisely this point in Laborem Exercens:

The expenses involved in health care, especially in the case of accidents at work, demand that medical assistance should be easily available for workers, and that as far as possible it should be cheap or even free of charge. … A third sector concerns the right to … insurance … in case of accidents at work. Within the sphere of these principal rights, there develops a whole system of particular rights which, together with remuneration for work, determine the correct relationship between worker and employer.

The Church’s teaching on matters of economics in particular or social justice in general tend to attract condemnation from my side of politics – sometimes from podcasters like Mike Spaulding and sometimes from commentators like Rush Limbaugh (Limbaugh, frankly, should know better).  Well, be that as it may.  The more I think of it, the more this work really does seem to be my vocation, and the way I am being asked to serve.

I can’t imagine anything I’m happier to think.

Ad maiorem Dei gloriam!

Ignoring the Train

Maybe the railway needed a sign.  Something like “Warning: this train may seriously damage your health”.

Ja’Lin Williams was 17 years old when he went with some friends to Whihala Beach in Whiting, Indiana.  The group was approached by a police officer who told them they were trespassing and would have to leave.  They fled on foot across a set of railway tracks as a train approached.  Subsequent video footage showed that the train’s horn and bells were sounding, its lights were on, and that warning lights on  surrounding gates were also flashing.  Despite this, Williams ran into the path of the train and was struck.  He sought compensation from the railway.  He and his friends stated that they had neither seen flashing lights nor heard warning bells.

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

The Indiana Comparative Fault Act provides that –

(a) In an action based on fault that is brought against:

(1) one (1) defendant;  or

(2) two (2) or more defendants who may be treated as a single party;

the claimant is barred from recovery if the claimant’s contributory fault is greater than the fault of all persons whose fault proximately contributed to the claimant’s damages.

The railway sought and was granted summary dismissal of the claim by the US District Court.  Mr Williams appealed.

The US Seventh Circuit Court of Appeals dismissed the appeal.  On the video evidence, Williams had had ample warning of the trains approach but had ignored it.  Moreover, the Court noted that in Indiana law a train operator has no duty to slow a train on seeing a person crossing, but may generally presume the person will take steps to avoid injury: Ohio & M Railway Co v Walker, 15 NE 234 (Ind. 1888) and New York Cent R Co v Casey, 14 NE2d 714 (Ind. 1938).  As a result, the Court of Appeals agreed with the District Court’s conclusion that no reasonable fact-finder could conclude that Williams was 50% or less at fault.

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

When cheerleading goes bad

Sports coaches don’t always have the world’s happiest job.  Every coach from the New England Patriots down to the Bullamakanka Netball Club gets castigated by supporters when the team fails to win.  And when things go really bad off the sporting field, every decision that lead there may be scrutinised as well.

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

On 27 December 2014 Kristen Galuardi, a pupil of Trumbull High School in Connecticutt, was engaged in a practice at the Fairfield Gymnastics and Cheerleading Academy.  It was alleged that the team’s director made two critical decisions in setting up the training.  First, one of the team was permitted to train in socks without shoes.  Second, the team were practising without spotters.  When Galuardi was thrown into the air, her team-mates attempted to catch her.  The team-mate wearing socks slipped and Galuardi hit the floor, suffering injuries.  She lost consciousness, but (it was alleged) the manager declined to seek medical assistance for her.

Galuardi sued for her injuries.  The case settled at the door of the Court for an undisclosed sum.  It is always difficult to draw lessons from a case that resolves by agreement rather than judgment; nevertheless, a few points can be made –

  • The fact that an activity is sporting rather than (say) work-related does not reduce the standard of care on administrators: Wilson v O’Gorman High School (2008).
  • Coaches should not increase the risks inherent in sports participation, at least outside the range of the ordinary activity involved in teaching or coaching the sport: Honeycutt v Meridian Sports Club LLC (2014).

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

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

Welcome to Canberra

An interesting case recently came out of the Supreme Court of the Australian Capital Territory (ACT).

Australia’s federation, with its large states and territories, sometimes throws up the odd situation of residents in one state being closer to the capital of a neighbouring jurisdiction than to that of their own. To address this, each State and Territory government has passed legislation giving each state and territory Supreme Court the jurisdiction of each of the others. By way of example, New South Wales’ Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s.4(3) says that “The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters”

ACT welcome
Image from here

Based on this section, Alice Bailey-Brown and her parents commenced proceedings in the Supreme Court of the ACT against the operators of the hospital where she was born. They alleged that the hospital had negligently managed her birth, causing cerebral palsy.  The defendant applied to transfer the matter to the Supreme Court of New South Wales (NSW), relying on s.5(2)(b)(ii) and (iii) of the equivalent ACT statute.  That section relevantly says –

If —

(a) a proceeding (in this subsection called the relevant proceeding ) is pending in the Supreme Court (in this subsection called the first court ); and

(b) it appears to the first court that …

(ii) having regard to—

(A) whether, in the opinion of the first court, apart from this Act and a law of … another State relating to cross-vesting of jurisdiction, the relevant proceeding … would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and

(B) the extent to which … the matters for determination in the relevant proceeding are matters arising under … a law of that other State or Territory and not within the jurisdiction of the first court apart from this Act and a law of … another State relating to cross-vesting of jurisdiction; and

(C) the interests of justice;

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

The defendant pointed out that –

  • The plaintiffs were residents of NSW.
  • The defendant was a creation of NSW law with no presence in the ACT.
  • The alleged negligence occurred in NSW.
  • The applicable law was that of NSW.
  • The defendant’s likely witnesses were based in NSW.
  • The plaintiffs’ treating doctors and expert witnesses were mainly based in NSW.

Despite this, the Court declined to transfer the matter.  The test was to balance the competing interests to establish what the interests of justice required.  It noted that –

  • The plaintiffs’ home in Wagga Wagga was much closer  to Canberra (2 hours 45 minutes) than to Sydney (about 5 hours).
  • The lead plaintiff was aged six years, severely disabled and required constant care.
  • The estimated dutation of the trial was three weeks.
  • At least some of the plaintiffs’ witnesses were based in Canberra.
  • It was possible the matter would be heard sooner in Canberra than in Sydney.

Her Honour’s concluding observation was particularly pointed:

it takes but a moment’s thought about the reality for these parents and their severely disabled child in litigating this matter from Sydney as opposed to Canberra to reach the conclusion that NSW is not the more appropriate forum for this matter. Whatever the merit of the case in medical negligence, I am not minded to make their lives any harder than they already are, by forcing them to litigate in a forum that makes it considerably more difficult for them to attend to the needs of their infant plaintiff.

The Court dismissed the application to transfer the case to the Supreme Court of NSW.

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

No urge to text

Coulda.  Woulda.  Shoulda.  But didja?

Apple didn’t.

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

Grim Reaper phone
Image from here

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

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

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

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

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

Did anyone subpoena Bob the Builder?

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

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

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

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

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

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

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

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

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

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

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

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

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