She wasn’t driving

Where a person sues for death benefits, can their own contributory negligence be raised against them?

Facts

Walter Meek was about to have a very bad evening.  Meek, employed as a bus driver by Guiseppe Locco, was driving on Williams Road in East St Kilda, Australia on the night of 5 June 1941.  It was never clear how he came to hit the car driven by Alfred Carstein.  There had been no rain that dayThe collision killed a 40 year old passenger in the car, Margaret Carstein, who was Alfred’s mother.

Litigation

Mrs Carstein left behind a husband and thirteen children.  Her widower, George Carstein, retained the law firm of JW Galbally (now Galbally & O’Bryan).  He sued Locco on his own behalf and on behalf of their children under Part III of the Wrongs Act 1928.  Sections 15 and 16 of the Act relevantly provided that

15. Whensoever the death of a person is caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured and although the death has been caused under such circumstances as amount in law to felony.

16. Every such action shall be for the benefit of the wife husband parent and child of the person whose death has been so caused …

These provisions live on in ss.16 and 17 of the Wrongs Act 1958.

MMTB Buses 1940
Leyland Titan buses, Melbourne, 1940 (Image from here)

Locco raised the defence that Mrs Cartein’s widower guilty of contributory negligence “by his servant or agent, Alfred Leonard Carstein”.  George Carstein applied to strike out that part of the defence.

Ruling

The application was ruled on by Gavan Duffy J.  His Honour ordered that the relevant parts of the defence be struck out.  He reasoned that in a case such as this, the issue of negligence was decided as if the deceased were herself bringing the case.  If the defendant’s negligence would have entitled the deceased to sue successfully, then the defendant would be liable.  It followed that the negligence of either George or Alfred Carstein was simply irrelevant.

Carstein v Locco [1941] ALR 330

Postscript

The matter was ultimately heard by a jury which found Meek and Locco to have been negligent.  Mr Carstein and his family were awarded damages of £2,000 (current value $161,936.21): Carstein v Locco (1941) Morwell Advertiser, 27 November 1941 at 1.

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)

Le Moullac v Daylight Foods Inc (2014) H&FLR 2015-8

Denis Le Moullac and Jessie Jewitt v Daylight Foods Inc and Gilberto Alcantar (2014) H&FLR 2015-8

San Francisco Superior Court

15 January 2015

Coram: Lam J.

Appearing for the Plaintiff: William Veen and Anthony Label (of The Veen Firm) and Micha Star Liberty  (of Liberty Law)
Appearing for the Defendant: Brent Anderson, Ronald Lenert and Kevin Taylor (of Taylor Anderson); Keith Bremer and Tyler Offenhauser (of Bremer Whyte Brown & O’Meara)

Catchwords: California – road accident – cyclist – wrongful death – damages.

Facts: At around 7am on 24 August 2013 24-year-old Amelie Le Moullac (“the deceased”) was cycling to work in a bicycle lane on Folsom Street in the South-of-Market district of San Francisco. As she approached the intersection of Folsom Street and Sixth Street she was struck and killed by a right-turning* semi-trailer belonging to Daylight Foods and driven by its employee Gilberto Alcantar. The evidence indicated that the bike lane was ‘dashed’ at the relevant point, so that the truck could cross it to enter Sixth Street, but that Alcantar failed to give way to the deceased.

The deceased was wearing a helmet. The evidence was unclear as to whether she was wearing earbuds while riding. It appears Alcantar gave a history of seeing the deceased, passing her, and then losing sight of her shortly before turning. It was unclear what speed either party was travelling.

The San Francisco District Attorney’s office elected not to charge the driver with vehicular manslaughter and the police elected not to issue a traffic infringement to the driver**. The deceased’s parents sought compensation for wrongful death from the driver and his employer.

Held: A jury of the San Francisco Superior Court found that Alcantar had driven negligently and that his employer was vicariously liable for his actions. It found no negligence on the part of the deceased. Damages of $4,000,000.00 were awarded.

Judgment

The matter was finalised by a jury verdict and no written reasons were issued.  The report is prepared based on the Court’s case record, on reports KQED News on 15 January 2015, 18 December 2014, 13 May 2014 and 27 August 2013, and on a memorial website prepared by the deceased’s co-workers.

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* British and Australian readers should remember that American drivers use the right-hand side of the road, and so Mr Alcantar was turning towards the side of the intersection closest to his truck.

** The decision not to prosecute for vehicular manslaughter is perhaps understandable, if conservative: the California Penal Code §192(c) requires at least negligence on the part of a driver; however, the various gradations of negligence in law are tending to become conceptually blurry and there may have been genuine doubt as to how a criminal jury would assess the driver’s conduct: see Stephen Tuck, ‘A recent decision of the Fourth Florida District Court of Appeal’ [Winter 2014] Comm’l Transp. Litig. Cmte Newsl. 10.  The decision not to issue an infringement notice is less explicable. While the California Vehicle Code §21717 required Mr Alcantar to enter the deceased’s lane, safe driving required him to give way to any vehicle already in the lane. An almost identical Victorian case involving a collision between a truck and a pedestrian resulted in a plea of guilty for failing to give way while turning under the predecessor section to Road Safety Road Rules 2009 §72(5)(c): Police v Biagio Favala (Melbourne Magistrates Court, unknown magistrate, 23 September 2008, unreported)

Note: Grateful thanks to Lenore Shefman of Shefman Law Group (Cyclistlaw), Austin, Texas, for alerting me to this case.

Harsted v Prior Lake-Savage School District (2013) H&FLR 2014-51

Beverly Harsted (as Mother and Natural Guardian of Tiffany Harsted) v Prior Lake-Savage Independent School District 719 (2013) H&FLR 2014-51

Scott County District Court (Minnesota)

20 June 2013

Coram: Fahey J

Appearing for the Plaintiff: Martin Montilino
Appearing for the Defendants: Not represented

Catchwords: Minnesota – school sport – gymnastics – action by coach – back injury – damages – quantum

Facts: The 14 year old plaintiff (Tiffany Harsted) was a student at Prior Lake High School and part of its gymnastics team. During a gymnastics practice on 26 January 2011 she was lying on her stomach on the floor of a training venue with an icepack on her back. An assistant coach stepped on her back for reasons which were unclear. She experienced persistent pain after this incident which was eventually identified as a vertebral facet fracture (in addition to stress fractures which were attributed to repetitive trauma associated with gymnastics). The stress fractures recovered but the facet fracture did not fully heal. The evidence was that the plaintiff would continue to have back pain with activity. She was ultimately able to resume gymnastics.

The plaintiff sought compensation for her injury from the school. Damages were agreed with the operator of the school at $24,000.00 (inclusive of legal costs of $8,000.00). Application was made to the court for approval of an infant’s compromise.

Held: The Court’s records indicate that the compromise was approved, offering an insight into the damages considered appropriate for a blameless plaintiff with an injury of the type described.

Judgment

No written reasons are available. This report has been prepared based on the Court’s Register of Actions and the report prepared by Kaitlyn Egan in the Prior Lake American of 16 June 2013.