Posted on by Stephen Tuck

Did blame end with death?

An interesting case on liability and causation was recently decided by the Supreme Court of South Carolina.

On 3 February 2011 pharmacist John Wickersham was involved in a road accident while driving a Ford Escape.  The airbag system was defective and enhanced his injuries.  After enduring severe pain for some months, he committed suicide.  His widow sought compensation from the manufacturer of the car  based on his wrongful death.  Ford argued that the deceased’s suicide was an intervening act that could not have been caused by a defective airbag.

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After a number of procedural twists and turns (including removing the case to federal court) a jury awarded the widow $4.65 million, albeit with a discount for Mr Wickersham’s contributory negligence.  Ford appealed to the Fourth Circuit Court of Appeals.  The Court of Appeals then asked the South Carolina Supreme Court to determine whether that State’s law recognised an exception to the principle that suicide will break the chain of causation in wrongful death claims.

The Supreme Court responded that it did not recognise such a principle.  Instead, the ‘traditional’ principles of causation applied: that is, the court must first decide whether the suicide was foreseeable as a matter of law.  That is, was it the “natural and probable” consequence of the defendant’s act or omission?  If so, then the jury must determine whether in the facts of the case the suicide was foreseeable and whether the alleged act  was causative: that is, did it cause the deceased  to suffer an involuntary and irresistible urge to end his life.

Wickersham v Ford Motor Co (So. Carolina, 24 July 2019)

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In re deaths of Nkondogoro and Ndirangu (2015) H&FLR 2015-32

Inquests into the deaths of Bobdeb Nkondogoro and John Kabiru Ndirangu (2015) H&FLR 2015-32

Coroners Court of Victoria

3 March 2015

Coram: Coroner White

No appearances recorded

Catchwords: Victoria – death – drowning – recent migrants – not able to swim – danger – failure to warn

Facts: Bobdeb Nkondogoro was aged 12 years.  He had recently arrived in Australia from Tanzania.  He went swimming in a creek in their neighbourhood despite being unable to swim.  It was not possible to be certain whether he was accompanied while swimming but it appeared to be the case that he had accidentally drowned after becoming trapped underwater.

John Ndirangu was aged 23 years and had recently migrated to Australia from Kenya.  With some family members he went wading at Frankston Beach in the late afternoon of 7 February 2009*.  A passing wave caused him to be unable to become unable to touch the bottom.  Not being able to swim, he lost his footing and drowned.  At the time there were no lifeguards on duty, and the ‘no swimming’ flags had been removed; such that swimmers were expected to look out for themselves and each other.

The coroner noted that new migrants to Australia were provided with a booklet which included a significant amount of information, including as to the dangers of swimming in open waters for non-swimmers.  He also noted that a number of community programs existed to aid new migrants to learn to swim, but that there were some difficulties with communication and also sustaining the involvement of participants.

Held: No criticism was made of the emergency services response in either matter. It was recommended that the Victorian Department of Sports and Recreation, in partnership with the Commonwealth Department of Immigration, examine how members of newly arrived migrant groups might best be taught to swim and to provide help with achieving that objective.

Judgment

The Court’s judgment in relation to Mr Nkondogoro is available here and in relation to Mr Ndirangu is available here.

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* From personal recollection I can confirm that 7 February 2009 was an extremely hot day in Melbourne, and that by late afternoon the attention of police and emergency services across the state were very heavily focussed on the outbreak of the disastrous “Black Saturday” bushfires.

Posted on by Stephen Tuck

State v Saad (2015) H&FLR 2015-29

State of Michigan v Bassel Abdul-Amir Saad (2015) H&FLR 2015-29

Wayne County Circuit Court (Michigan)

13 March 2015

Coram: Judge Cameron

Appearing for the Prosecution: Erika Tusar (of Wayne County Prosecutor’s Office).
Appearing for the Defendant: Cyril Hall (of Law Office of Cyril C. Hall, PC)

Catchwords: Michigan – soccer – referee – assault – death – homicide – manslaughter – sentence

Facts: The defendant, a 36-year-old Lebanese national, was playing in a recreational soccer match at Livonia on 29 June 2014.  The referee, John Bieniewicz, issued him with a red card, ejecting him from the game.  The defendant lost his temper and punched the referee, causing fatal injuries.

The accused was charged with second degree murder and pleaded guilty to involuntary manslaughter.  His history included assaulting another soccer player during a match in 2005.

Held: Sentencing the defendant to fifteen years imprisonment with a minimum term of eight years –

1. That the defendant was an example of what the community considered wrong with escalating violence in sports. His offence was “a childish, senseless act of taking another man’s life with no excuse or justification other than dealing with rage that [he was] unable to contain” (1).

2. That the defendant pay $9,265 restitution to the deceased’s family in respect of funeral expenses.

Note: It is possible that the defendant’s potential deportation following his term of imprisonment may have been a factor in the sentence imposed.

Judgment

The court’s case record (including a summary of the sentence) is available here.  This report also used information contained in reports published in the Detroit News of 20 February 2015, the Detroit Free Press of 13 March 2015, the New York Daily News of 13 March 2015, USA Today of 13 March 2015, and reported on NBC News on 13 March 2015, on CBS News on 13 March 2015 and on WXYZ Detroit on 13 March 2015.

=================================

(1) Cf the sentencing remarks in DPP v Ryan (2007) H&FLR 2014-49.

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In re death of Rodd (2013) H&FLR 2015-26

Inquest into the death of Robyn Anthea Rodd (2013) H&FLR 2015-26

Coroners’ Court of Victoria

6 February 2012

Coram: Coroner Bryant

No appearances – finding without inquest.

Catchwords: Victoria – Coroner – cyclist – collision with truck – death – pilot vehicle

Facts: The deceased was aged 55 years and an experienced recreational cyclist.  On 26 May 2010 she was cycling on the Great Alpine Road between Harrietville and Mt Hotham.  While descending Mt Hotham the deceased was wearing a fluorescent green jacket and travelling at about 40 kph (25 mph).  As she approached a sharp left bend she saw a slow moving Kenworth prime mover and low loader driven by a Mr Skahill.  Rodd braked, causing her bike to fishtail.  She fell from the bike and into the path of the truck, sustaining fatal injuries.

It was accepted that the truck was on the correct side of the road at all times.

Held: 1. The truck driver did not contribute to the deceased’s death.

2. The roads authority (VicRoads) should consider requiring the use of pilot vehicles by oversize heavy vehicles on steep roads with multiple blind or hairpin bends where the heavy vehicle’s size means it takes up a substantial part of the lane or must cross the centreline to negotiate a bend.

Judgment

The Court’s judgment is available here.

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In re death of Cross (2011) H&FLR 2015-24

Inquest into the death of James Bernard Cross (2011) H&FLR 2015-24

Coroners’ Court of Victoria

10 November 2011

Coram: Coroner Spooner

Appearing for the the family of the deceased: Mr Hevey
Appearing for Mrs Richards: Ms Gleeson
Appearing for the Roads Corporation: Ms Fox

Catchwords: Victoria – Coroner – cyclist – dooring – death – bicycle lanes

Facts: The deased was a 22 year old student.  On 17 March 2010 he was cycling to university along a designated shared parking and cycling lane on Glenferrie Road, Hawthorn, south of the intersection with Barkers Road. A car driver (Mrs Richards) was parked in the shared lane approximately 150 metres from the intersection of Barkers and Glenferrie Roads.  She opened the driver’s-side door, which collided with Mr Cross causing him to fall onto the roadway beneath the trailer wheels of a heavy vehicle with was also travelling south on the road.  Mr Cross sustained fatal injuries in the accident and died at the scene.

The driver’s evidence was that she had considered the possible presence of cyclists, that she had checked her wing mirror and that she had opened her door only 12cm (about 5 inches) when it was struck (1).  She said however that she had not seen the deceased.  The truck driver’s evidence was that he was travelling at around 30 kph (19 mph) at the time of the accident.

Police opted not to charge Mrs Richards with breaching Road Safety Road Rules 2009, r.269(3) (opening a vehicle door to the danger of another).

Held: Concluding that Mrs Richards had opened her door wide enough to knock Mr Cross off his bicycle, but that the truck driver’s driving had not contributed to the accident, that –

1. Cyclists should be considered vulnerable when riding in close proximity to other vehicles.

2. It is the responsibility of motorists to check for the presence of cyclists before opening car doors.  However, it is incumbent on cyclists to remain vigilant when riding past parked cars.  It was recommended that VicRoads take steps to remind both groups of their responsibilities.

3. It was recommended that reconfiguring bicycle lanes to pass to the left of parked cars be encouraged.

Judgment

The Court’s judgment is available here.

Comment: Intriguingly, Court’s third recommendation may have little trouble attracting support at a policy-setting level.  Pro-cycling politicians have observed that “a significant number of people would ride to work and sports and make as many short trips as they could by bike, if it were safe to do so … That means having safer on-road or off-road paths that connect and link the various centres” (2).  The safety-enhancing effect of having bicycle lanes to the left of parked cars would have prevented, for example, the accidents discussed in a blogpost by attorney Tina Willis (3) and looks remarkably like arch-conservative Rush Limbaugh’s robustly-expressed view that cyclists should be required to ride on footpaths rather than on public roads (4).

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(1) How far the door was opened was disputed by another witness.

(2) ‘Pushbike pollies pedalling a new line’, Newcastle Herald, 6 March 2015.

(3) Tina Willis, ‘Bad Week For Bike Riders’, Tina Willis Law, 25 September 2014

(4) Adam Voiland, ‘What does Rush Limbaugh have to say about bicycling?’, Examiner.com, 5 March 2009

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In re death of Sizeland (2013) H&FLR 2015-22

Inquest into the death of Rex Sylvester Sizeland (2013) H&FLR 2015-22

Coroners’ Court of Victoria

28 June 2013

Coram: Coroner Parkinson

Appearing for the family of the deceased: Mr G Stewart (solicitor)
Appearing for Mr Costa: Mr T Bourke (instructors not identified).

Catchwords: Victoria – Coroner – cyclist – hit by car – distracted driver – death

Facts: The deceased was aged 66 years and an experienced road cyclist.  On 21 December 2009 he was riding between Torquay and Barwon Heads. During the ride, he and the other two men with whom he was riding were struck from behind by a car driven by a Mr Costa.

The evidence of lay witnesses was that the deceased and the other two riders were to the left of the road and using about half of the width of the northbound lane.  The court concluded that there was no reason for Mr Costa not to have noticed the cyclists.  The court was somewhat critical of his evidence and considered it likely that he had been distracted by something inside the vehicle, although it could not conclude that he had been reading a text message.

Held:  That Mr Sizeland’s death was preventable and that the death could have been prevented had he paid proper attention to the task of driving.  No action of Mr Sizeland’s caused his death.

Judgment

The Court’s judgment is available here.

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In re death of Sidebottom (2013) H&FLR 2015-20

Inquest into the death of David Andrew Sidebottom (2013) H&FLR 2015-20

Coroners’ Court of Victoria

18 October 2013

Coram: Coroner Saines

Appearing for Ms Connor: Mr Brendan James (solicitor)

Catchwords: Victoria – Coroner – cyclist – distracted driver – death – funding

Facts: The deceased was aged 53 years and an experienced cyclist.  On 2 January 2011 he was riding west on Murradoc Road at Drysdale.  He was approached from behind by a Honda CRV driven by a Ms Connor.  The front left corner of the Honda struck the bicycle and caused the deceased to be thrown off and suffer fatal injuries.

Both at the time of the accident and subsequently the driver was not able to say how the accident occurred (the Court was satisfied that this was not intentional or evasive).  No charges were laid against her.  The driver was not affected by alcohol, speeding or using a mobile phone.  There was some evidence that she may have been distracted.  There was also evidence that the deceased may have deviated suddenly into the path of Connor’s vehicle.

Held: 1. It was likely that the deceased had deviated into the path of Ms Connor’s car in circumstances where she may have neither anticipated nor seen the deviation.

2. Decisions as to the spending of public money was not generally appropriate for a recommendation under §67 of the Coroners Act.  That said, a significant increase in cyclist numbers could support a special case for priority funding in order to enhance community health and safety and reduce the risk of death or injury to cyclists.

Judgment

The Court’s judgment is available here.

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In re death of Bailey (2014) H&FLR 2015-16

Inquest into the death of Keiran Bailey (2014) H&FLR 2015-16

Coroners’ Court of Victoria

25 August 2014

Coram: Coroner Spanos

No appearances.

Catchwords: Victoria – Coroner – cyclist – hit by car – death – mental illness – fitness to drive – duty to report

Facts: The deceased was aged 44 years.  On 8 March 2011 at around 1:45pm he cycled from his home to a shopping centre.  He was cycling in a designated bike lane of a road.  The car lanes of the road at the relevant point narrowed from three lanes to two. A car driven by a Mr Veerman, travelling at least 10 kph (6 mph) above the speed limit failed to merge, drove into the bike lane and struck the deceased, causing fatal injuries.  Mr Veerman fled the scene and was subsequently convicted of a range of offences relating to the collision: R v Veerman (2011), Herald Sun, 23 December 2011*.

In the years before the collision Mr Veerman had suffered from marked mental illness and had received some level of psychiatric care.  He held a drivers licence at the time of the collision.

Held: It was recommended that medical professionals be educated to ensure patients’ fitness to drive would be at the front of doctors’ minds when assessing patients with conditions likely to affect their capacity to drive safely.

Judgment

The Court’s judgment is available here.

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* A partially successful appeal by Veerman was subsequently brought: Veerman v R (Vic. Ct App., Weinberg and Harper JJA, T Forrest AJA, 24 August 2012, unreported).

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In re death of Peoples (2010) H&FLR 2015-14

Inquest into the death of Scott David Peoples (2010) H&FLR 2015-14

Coroners’ Court of Victoria

11 October 2010

Coram: Coroner Bryant

Counsel assisting the Coroner: Mr John Goetz
Appearing for the family of the deceased: Mesdames Jane Dixon SC and Esther James (instructed by Riordan Legal).
Appearing for the Blay family*: Mr Barrett (Instructed by Barretts Lawyers)
Appearing for VicRoads: Mr Trevor Wraight (instructed by DLA Phillips Fox)
Appearing for the Chief Commissioner of Police: Ms Julia Greenham (instructed by the Victorian Government Solicitor’s Office)
Appearing for the Cycling Victoria: Mr K. Mueller.

Catchwords: Victoria – Coroner – cyclist – hit by car – death – fitness to drive – duty to report

Facts**: The deceased was a 20 year old cyclist.  At the time of his death he was on the verge of cycling professionally.  While on a training ride on the Maroondah Highway near Merton he was struck from behind by a Nissan patrol driven by a Mr Kenneth Blay.  Mr Peoples died as a result of his injuries.

At the point of collision the road was paved, with a two metre paved shoulder.  The road runs straight and slightly uphill.  Mr Blay stated that he did not see the deceased prior to the collision and was only made aware of the collision by the noise of impact.  He subsequently pleaded guilty to a charge of careless driving: Police v Blay (Mansfield Magistrates court, 1 August 2007, unreported).

Blay’s speed at the time of the collision was estimated at 73 kph (45 mph).  Police considered that he would have had 500-600 metres of unimpeded vision.  The collision was considered to have occurred on the paved shoulder of the road.  Blay had a significant left-side blind spot as a result of a stroke.  In 2004 he had also been involved in a collision with a cyclist on the same road.

Held: 1. The Court strongly recommended mandatory reporting by doctors to licensing authorities of patients considered unfit to drive on medical grounds.  It was not sufficient merely to recommend the patient not drive.

2. Cyclists and motorists share an obligation to use the roads in a safe manner.  However, the particular vulnerability of cyclists imposes an obligation on motorists to drive in a manner that does not put cyclists’ lives at risk

Judgment

The Court’s judgment is available here.

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* Blay had died by the time of the inquest.
** In assessing the facts, note that the Coroner was scathingly critical of the police investigation.

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R v Langford (2009) H&FLR 2015-2

The Queen v Jessica Maree Langford (2009) H&FLR 2015-2

Melbourne County Court (Victoria)

29 March 2009

Coram: Judge Howie

Appearing for the Prosecution: Anne Hassan (of the Office of Public Prosecutions)
Appearing for the Defendant: Dermott Dann (instructors not identified)

Catchwords: Victoria – criminal law – swimming – alcohol – culpable driving – death – sentence

Facts: The defendant was aged 19 years on 29 November 2008. She and her boyfriend had attended Shoreham Beach late that night where they swam naked and drank premixed bottles of vodka and soft drink as well as a bottle of neat vodka.  After swimming they dried themselves with their clothes and the defendant (still naked) began to drive them back to Frankston.  At Hastings the car was involved in an accident and the defendant’s boyfriend was killed.

The defendant’s blood alcohol reading two hours after the accident was 0.09%.  As a probationary driver she was not permitted to have a blood alcohol reading higher than 0.00% (1). The police concluded that at the time of the accident the defendant was driving at 104kph in a 90kph zone.

The defendant was charged with culpable driving causing death and dangerous driving causing death. Magistrate Wakeling committed her to stand trial in the County Court: DPP v Langford (2009), Sydney Morning Herald, 8 September 2009.

The Crimes Act 1958 (Vic.) provides as follows regarding these offences –

[in §318(1 & 2)] – Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both. 

… a person drives a motor vehicle culpably if he drives the motor vehicle—

(a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or

(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or

(c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; …

and

[in §319(1)] – A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

The defendant pleaded guilty in the County Court to dangerous driving causing death. Her barrister noted that she suffered from marked pre-existing psychological problems, had a post-accident history including substance abuse, multiple suicide attempts and a diagnosis of bipolar affective disorder, and had been prescribed anti-psychotic medication. He noted that she had no criminal history.

The Crown submitted that the defendant’s mental health was irrelevant, and that her good character and prospects for rehabilitation did not alter the need for general deterrence. It was submitted that the defendant should be detained in a Youth Training Centre.

Held: Sentencing the defendant to a community based order and prohibited her from driving for 18 months, that –

1. The attitude of the deceased’s family, who forgave the defendant and openly supported her at trial, was relevant to imposing a lenient sentence.

2. It was relevant that the defendant’s psychological state was fragile and that her recovery would not be assisted by a custodial sentence.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the Herald Sun (Melbourne) of 29 March 2010, the Daily Telegraph (Sydney) of 23 March 2010 and the Sydney Morning Herald of 8 September 2009 and 15 February 2010.

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(1) The limit in Victoria for the holder of a full licence is 0.05%.