The challenges of maturity

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

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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

Pius wasn’t on the ballot

The 1949 Australian Federal Election is usually remembered for the election of the long-lived Liberal/Country Party government which lasted until 1972. It threw up one other interesting result: a High Court decision which (a little surprisingly) has never been reported.

Gordon Anderson was the winning candidate for the newly-formed electorate of Kingsford-Smith.  He took 49.7% of the vote.  His election was challenged by independent candidate Henry Crittenden (who took a whopping 3.2%).  Crittenden alleged that the Gordon – a Roman Catholic – was under an allegiance to the “Papal State”.  This would mean that his election breached §44(i) of the Australian Constitution. That section provides that –

Any person who … is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

By contrast, s.116 of the constitution states that “no religious test shall be required as a qualification for any office … under the Commonwealth”.

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Nope! (Image from here)

The case was brought in the High Court of Australia sitting as the Court of Disputed Returns. Anderson applied to stay the proceedings as vexatious. The matter was dealt with by Fullagar J. His Honour said –

[E]very person born in Australia, into whatever religion he may be born and whatever religion he may embrace, is according to the law of this country … a British subject owing allegiance to His Majesty, and that of that allegiance he cannot rid himself except in certain prescribed ways. … But the root of the matter, to my mind, lies in the fact that the petitioner really seeks to revive a point of view which was abandoned in England in 1829, when §2 of Act 10 Geo. IV, c. 7 enacted that any person professing the Roman Catholic religion might lawfully sit and vote as a member of either House of Parliament, if in other respects duly qualified. Section 116 of our own Constitution was, of course, not enacted by men ignorant or unmindful of history, and it is, in my opinion, §116, and not §44(i) of our constitution which is relevant when the right of a member of any religious body to sit in parliament is challenged on the ground of his religion. Effect could not be given to the petitioner’s contention without the imposition of a “religious test”. In my opinion, the ground put forward … is quite untenable.

The application was dismissed with costs against the petitioner.

Crittenden v Anderson (High Court of Australia, Fullagar J, 23 August 1950, unreported)

What part of “shall not” don’t you understand?

It shouldn’t be difficult should it?  You just have to avoid acting like a tool.

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Image credit: Ondrick Larsen Lawyers

In 2017 an intervention order was served on a man in Portland, Australia.  He was forbidden from physically or verbally intimidating a particular other person.  On 13 April 2018 he was at that person’s home when an argument saw him grab their chair and then verbally abuse them.  The offender was charged with breaching an intervention order.  The report leaves unclear what sort of intervention order was imposed.  However, the Family Violence Protection Act 2008 (Vic.), §123(2) provides that breaching a family violence intervention order is punishable by up to two years imprisonment.

The defendant was presented for trial in Portland Magistrates Court where he pleaded guilty.  He submitted that a series of quarrels combined with a failure to take medication had lead to the actions breaching the order.  Toose M imposed a fine of $1,200.00.

Police v Kennett (2018) Portland Observer & Guardian, 2 May 2018, p.5

Doing a line of … baby formula?

I don’t know how much heroin costs per ounce. I hope it’s more than baby formula. If it’s less, it’ll completely eff my sense of reality.

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In December 2017 and April 2018 a man from Corio, Australia, stole 67 tins of baby formula from supermarkets in Portarlington, Drysdale and Eltham. The retail value of this much formula was A$2,345.00 (the value on the China-driven black market may be as much as A$13,500!)

The offender was charged with four counts of theft and one of obtaining property by deception, as well as certain bail offences. The Crimes Act 1958 (Vic.), §81(1) provides that –

A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

 

The offender was dealt with in the Geelong Magistrates’ Court. His lawyer submitted that he had committed the thefts to fund a heroin addiction. He had been gainfully employed from his release from prison for another offence in 2012 until he suffered a back injury in 2016.

Mellas M sentenced the offender to two months imprisonment.

Police v Wright (2018) Geelong Advertiser, 25 May 2018, p.7

The flames of revenge

The Black Saturday bushfires of 2009 have left a long shadow across Victoria, Australia.

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A 53 year old woman lit 14 fires around the Tatura and Mooroopna areas between February 2014 and January 2015.  Mercifully each was reasonably small but required attendances from the all-volunteer Tatura and Mooroopna fire brigades.  The defendant was charged with intentionally or recklessly causing a bushfire.  The Crimes Act 1958 (Vic.) §201A(1)  provides that

A person who—
(a) intentionally or recklessly causes a fire; and
(b) is reckless as to the spread of the fire to vegetation on property belonging to another—
is guilty of an offence and liable to level 4 imprisonment (15 years maximum).

The defendant was dealt with in the County Court of Victoria.  Judge Carmody noted that some of the offences were promoted by a quarrel with a farm managers son.  His Honour considered that her mental impairment (mild intellectual disability and an IQ of 67) reduced her moral culpability.  However, he alos noted that dealing with the fires had placed additional pressures on volunteer emergency responders.  He sentenced the defendant to 88 days imprisonment, a four year community corrections order and 300 hours of volunteer work.

Director of Public Prosecutions v Thumpston (2018), Tatura Guardian, 17 April 2018, p.7

A dog’s death

Kindness and neglect can be surprisingly close companions. In a recent post we saw that this is true of how we treat humans. It’s also true of animals.

In late 2015 a resident of Canberra, Australia, found a stray dog entangled in his hedge. It was eventually found to be terminally sick, afflicted with lymphoma, underweight and flyblown . He brought the dog into his secure back yard but (as he later told the court) lacked sufficient funds to take it to a vet for care. In November 2015 a member of the public reported the dog’s predicament to the Royal Society for the Prevention of Cruelty to Animals (ACT) (RSPCA).

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Image credit: RSPCA (ACT)

 

The RSPCA seized the dog and ultimately put it down (the Society’s press release is unsparing about how badly degraded was the dog’s condition). The man was charged with failing to seek veterinary treatment*.  The Australian Capital Territory’s Animal Welfare Act 1992 (ACT) §6B relevantly provides that

(1) A person in charge of an animal has a duty to care for the animal.
(2) A person in charge of an animal commits an offence if the person—
(a) fails to take reasonable steps to provide the animal with
appropriate—

(iv) treatment for illness, disease, and injury;  …
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(3) In this section:
appropriate means suitable for the needs of the animal having
regard to the species, environment and circumstances of the animal.
reasonable steps means the steps a reasonable person would be
expected to take having regard to all the circumstances.
treatment includes veterinary treatment if a reasonable person
would expect veterinary treatment to be sought in the circumstances.

The defendant was dealt with in the Australian Capital Territory Magistrates’ Court. He pleaded guilty to the charge but said that he had not been able to afford to get the dog treatment on a veteran’s pension.

Theakston M noted that by keeping the dog in his back yard, the defendant had prevented other people from helping it**. The offender “did the right thing, but in doing so failed to meet additional obligations” connected with taking charge of a dog.

His Honour imposed a 12 month good behaviour order. He did not order the defendant to cover the costs of caring for the dog, destroying it and holding a post-mortem, noting that the organisation would probably have incurred these costs regardless.

Royal Society for the Prevention of Cruelty to Animals v Van Duren (2016) Canberra Times, 5 December 2016.

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* A charge of failing to provide shelter was withdrawn.

** cf Zelenko v Gimbel Bros Inc, 158 Misc. 904; 287 NYS 134. One might wonder who His Honour thought was likely to help the dog.

Oh Deer…

In August 2017 the Game Management Authority and Victoria Police conducted a crackdown on illegal hunting in northeast Victoria, Australia. One group of men was found to be in possession of two firearms and two high-powered torches. The second group was found to be in possession of a single firearm and four high-powered torches.

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Image from here

The Wildlife (Game) Regulations 2012 (Vic.) r.12 provide that –

(1) A person must not be in possession of a spotlight and a firearm in recognised deer habitat from 30 minutes after sunset until 30 minutes before sunrise. Penalty: 20 penalty units.
(2) A person must not be in possession of a spotlight and be in company with a person in possession of a firearm in recognised deer habitat from 30 minutes after sunset until 30 minutes before sunrise. Penalty: 20 penalty units.
(3) A person must not be in possession of a firearm and be in company with a person in possession of a spotlight in recognised deer habitat from 30 minutes after sunset until 30 minutes before sunrise. Penalty: 20 penalty units.

Both groups were presented for trial in Myrtleford Magistrates Court. The court fined two men $1,000.00 without recording a conviction (both of these mens’ hunting equipment had been seized). The third man was placed on a diversion and ordered to pay $250.00 to charity and write a letter of apology (the matter will be struck out if he is of good behaviour for 12 months). The fourth man pleaded guilty and was fined $750.00. The fifth was placed ona good behaviour bond without conviction and ordered to donate $750.00 to charity

Game Management Authority v Flanders* (2018) Country News, 15 May 2018, p.8.

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* No name is given in the report and I have arbitrarily assigned a name drawn from television.

How not to solve housemate issues

We’ve all had that housemate: the one who’s never adjusted to the fact that their mother isn’t there to clean up after them. It’s still not a good idea to go Jackie Chan on them.

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On 2 August 2017 a 32 year old man from Portland, Australia, locked a housemate out of their dwelling.  When the housemate arrived home at 3:30am, the offender began to berate them over uncompleted chores, finally pushing them onto a bed and slapping them.  He was charged with recklessly causing injury (Crimes Act 1958 (Vic.), §18):

A person who, without lawful excuse, … recklessly causes injury to another person is guilty of an indictable offence. Penalty: … If the injury was caused recklessly—level 6 imprisonment (5 years maximum).

The offender pleaded guilty in Portland Magistrates Court.  Toose M fined him $1,000.00.

Police v King (2018) Portland Observer & Guardian, 2 May 2018, p.5.

Taxidermy: not always a good idea

In June 2017 staff from the Department of Environment, Land, Water and Planning raided the home of a man in Kilmore, Australia.  They located a stuffed koala mounted as a wall decoration.  The man admitted to shooting the koala with a .22 rifle, stuffing and mounting it.  His only explanation was that it was “something to do”.

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Image from here

It appears he was charged with breaching the Wildlife Act 1975 (Vic.), §§ 43 and 47D.  Section 43(1) provides that –

A person must not hunt, take or destroy other protected wildlife.  Penalty: 50 penalty units or 6 months imprisonment or both the fine and imprisonment and an additional penalty of 5 penalty units for every head of wildlife in respect of which an offence has been committed.

Section 47D(1) states that –

A person must not have wildlife in his or her possession or control if that wildlife has been taken, destroyed, acquired, received, bought, sold, disposed of, kept, possessed, controlled, bred, processed or displayed in contravention of this Act or any corresponding law of another State or a Territory of the Commonwealth.  Penalty: 240 penalty units or 24 months imprisonment or both.

The offender was dealt with in Seymour Magistrates Court in April 2018.  He was found guilty of the offences charged.  He was placed on a good behaviour bond and ordered to pay $1,000.00 to the Court Fund.

Dep’t of Environment, Land, Water and Planning v Simpson* (2018) Seymour Telegraph, 16 May 2018, p.12

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* The offender is not identified in the report; I have taken the liberty of drawing a name from The Simpsons.

And punish the sick

There’s been quite the brouhaha here over the last few days over the non-custodial sentences given to two women who attacked and injured a paramedic.  The case, if you’re interested, was Director of Public Prosecutions v Warren & Underwood [2018] VCC 689.  The public response has been predictably savage, and remarkably unforgiving when one considers that both women were (and are) apparently remarkably damaged after lifetimes of physical and sexual abuse.  Attempts by me to defend the decision were not well received –

It’s a bit of a surprise to be called a “bleeding heart socialist” after a lifetime as an old-school right winger!

More troubling are the proposed reforms reported in yesterday’s Age, and in particular this one –

Ambulance Employees state secretary Steve McGhie said he was given an undertaking from the Premier that he would change laws to jail people who injure emergency services workers, even if they are suffering from mental illnesses including schizophrenic episodes.

I have a stake in this: I am an “emergency services worker” when I’m not being a lawyer (State Emergency Service, Coast Guard and Red Cross).  But I can’t stomach the idea that protecting me warrants effectively re-criminalizing mental illness.  It is too close to punishing for the sake of punishing.

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I have to agree with Pope Francis: punishments which are imposed in the hope of frightening people into compliance – public punishments – are a hammer that makes every problem look like a nail:

a widespread conviction has taken root in recent decades that public punishment can resolve the most disparate social problems, as if completely different diseases could be treated with the same medicine. This is not so much about trust in some social function traditionally attributed to public punishment, as about the belief that it is possible that such punishment can obtain those benefits that would demand the application of a different type of social and economic policy as well as social inclusion.

A politician grubbing for votes by coming down hard on criminals is merely acting in a tawdry and predictable manner.  One who does so by coming down hard on the ill is repulsive.