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)

… and a sack marked ‘swag’!

Sometimes offenders go the whole hog on their brand of crime.

Image from here

From August 2016 to September 2017 a woman from Corio, Australia engaged in a series of property crimes against four elderly men.  The crimes spanned theft, aggravated burglary, robbery and obtaining property by deception.  One of the crimes included stealing a credit card from a disability pensioner; another victim was an 80 year old.  The circumstances might be inferred from the definition of “robbery” in §75 of the Crimes Act 1958 (Vic.):

A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear that he or another person will be then and there subjected to force. … A person guilty of robbery … is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum).

The defendant pleaded guilty in Geelong Magistrates Court.  McGarvie M imposed a sentence of four years imprisonment with a non-parole period of three years.

The defendant has lodged an appeal against her sentence in the County Court of Victoria.

Police v Elston (2018) Geelong Advertiser, 16 April 2018, p.7.

When was it written?

Everyone deserves a fair hearing.  Even oil companies.

In April 2013 a North Sea oil processing station operated by Chevron was visited by a Health and Safety Inspector.  The inspector determined that the stairway accessing the helideck had become so corroded that it presented a danger to people on the facility.  He issued a prohibition notice under §22 of the Health and Safety at Work Act 1974 (UK), (Act) forbidding Chevron from carrying out certain activities at the station.

Image from here

Chevron appealed to the Employment Tribunal at Aberdeen under §24 of the Act.  Subsection 24(2) provides that –

A person on whom a notice is served may within such period from the date of its service as may be prescribed appeal to an employment tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.

On appeal, Chevron sought to rely on an expert report showing that the metalwork posed no threat to personnel.  The English Court of Appeal had previously held in Hague v Rotary Yorkshire Ltd [2015] EWCA Civ 696 that in such an appeal, the Tribunal was limited to considering the evidence available to the Inspector issuing the notice.  Despite this, the Tribunal considered that it was able to consider the later report supplied by Chevron and cancelled the notice.  An appeal by Chevron to the Scottish Court of Session was dismissed.  Chevron appealed to the Supreme Court of the United Kingdom.

For the Supreme Court, Lady Black pointed out that “[t]he appeal is not against the inspector’s opinion but against the notice itself”.  It followed that the Hague case had been wrongly decided and that is was open to the Tribunal on an appeal to consider all the available evidence, including evidence coming to light after service of the notice.

HM Inspector of Health & Safety v Chevron North Sea Ltd [2018] 1 WLR 964

Say what, now?

Nobody could say Jay Chandler didn’t give it a his best shot.  It still wasn’t a winning strategy to change stories at the last minute.

Golden Grove Remand Prison (Image from CaribFlame website)

On 8 October 2004 Jay Chandler was an inmate at Golden Grove Remand Prison in Trinidad and Tobago.  He was involved in a fight with another inmate who was shortly afterwards found to have sustained a fatal stab wound.  He was charged with murder.

Chandler’s first trial in the High Court of Trinidad and Tobago ended in a hung jury*.  He was retried, convicted and sentenced to death**.  His appeal to that country’s Court of Appeal was dismissed***.  On each of the three proceedings he denied having stabbed the victim.  He appealed to the Privy Council where he sought for the first time to admit medical evidence supporting a defence of diminished responsibility.

By a 3-2 majority the Board dismissed the appeal.  The Supreme Court of Judicature Act 1962 (Trin. & Tob.) §47 provides that

For the purposes of an appeal in any criminal cause or matter, the Court of Appeal may, if it thinks it necessary or expedient in the interest of justice … receive the evidence, if tendered, of any witness …

Previous cases had established that any fresh evidence should be capable of belief and that a reasonable explanation be given for the failure to present it at trial, but that an appellate court had an overriding power to admit new evidence if it were in the interest of justice.  In this case the majority (Lords Carnwath, Sumption and Reed) found it significant that the new evidence directly contradicated the case proffered at trial.  There was no explanation of the change in position.

Crucially, in the Board’s view, there is no evidence that the failure to advance a case of diminished responsibility at the trial was anything other than deliberate, and indeed a fair reflection of the appellant’s own position. … [T]here is no evidence even now that the appellant has himself changed his position, or would do so if there were to be a retrial.

The minority (Lords Kerr and Lloyd-Jones) considered that unless there was a sound basis for concluding that the Chandler knowingly neglected to advance this defence, it should not be presumed that he deliberately chose not to raise it.

Strikingly, no member of the Board considered that the death sentence on its own made a possible new defence significant enough to warrant a retrial in the interests of justice.  This may reflect the rarity with which Trinidad and Tobago actually carries out the death sentence.

Chandler v The State (2018), Privy Council, 12 March 2018.


* The State v Chandler (2009) Trinidad Express, 2 April 2009.
** The State v Chandler (2011) Trinidad Guardian, 19 August 2018; Trinidad Express, 17 August 2011.
*** Chandler v The State (2013) Trinidad Express, 16 December 2013.

Dr Judge, I presume?

Most personal injury practitioners see a string of radiological records in every case. A recent decision from the US Seventh Circuit is a reminder of the hazards of reading them without adequate training.

MRI meme
Image from here

Ms Akin applied for Supplemental Security Income. She alleged that she became disabled in 2011 as a result of fibromyalgia, back and neck pain and headaches. She saw a number of treating doctors and underwent an MRI. She was also assessed by two medicolegal examiners. The latter concluded that she was fit for sedentary work. Her claim was rejected by the Commissioner of Social Security. She appealed to an Administrative Law Judge (ALJ). The ALJ preferred the opinions of the medicolegal examiners and found that Ms Akin was not disabled because she was fit for sedentary work. The ALJ also said that the MRI scans (which the examiners had not seen) were consistent with Akin’s impairments but did not support her allegations of pain.

Ms Akin appealed to the US District Court which upheld the decision. She appealed to the United States Court of Appeals for the Seventh Circuit. Her appeal was upheld. The Court considered that –

… the ALJ’s evaluation of Akin’s MRI results is flawed because the ALJ impermissibly “played doctor.” … The ALJ stated that the MRI results were “consistent” with Akin’s impairments and then based his assessment of her residual functional capacity “after considering … the recent MRIs.” But, without an expert opinion interpreting the MRI results … the ALJ was not qualified to conclude that the MRI results were “consistent” with his assessment.

The ALJ’s decision was vacated and the matter remanded for further proceedings.

Akin v Berryhill (2018), US Court of Appeals for the Seventh Circuit, 4 April 2018.