Litigation and Protests

By now an ocean of ink has been spilt in the wake of the killing* of George Floyd. I haven’t added to it. If anything can be learned from the matters of <a rel="noreferrer noopener" href="http://&lt;!– wp:file {"id":1041,"href":";} –> <div class="wp-block-file"><a href="">pell-v-r-2020-94-aljr-394</a><a href="; class="wp-block-file__button" download>Download</a></div> Pell v R and <a rel="noreferrer noopener" href="http://&lt;!– wp:file {"id":1042,"href":";} –> <div class="wp-block-file"><a href="">maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported</a><a href="; class="wp-block-file__button" download>Download</a></div> Maryland v Goodson it’s that public passion does not necessarily translate into legal outcomes.

Be that as it may. There is one side of matters that has had me thinking, which is the potential litigation fallout. In particular, cases where participants in the protests find themselves suffering loss or damage

It seems to me someone like the poster above would be in a challenging legal position in seeking compensation from the organisers of a protest, and in particular one where the protest morphed into a riot. The most obvious analogy I can think of is that of sporting injuries, where players are generally taken to consent to the sort of harms (for want of a better word) which are an inherent part of the game (Smith v Emerson). On one view of the matter, the risk of a protest – especially one with angry and upset people – becoming violent may be an inherent danger of demonstrations. On the other hand, the consent posited does not extend to acts done solely with the intention of causing harm (McNamara v Duncan).

Further, deliberate harm is not considered to be susceptible to a defence of voluntary assumption of risk (Sibley v Milutinovic). What might be a more interesting question is whether a person can be taken to have engaged in contributory negligence by remaining after a demonstration has already deteriorated into indiscriminate actions as in the case of Ms Tauss mentioned above.

* I say killing rather than murder quite consciously and deliberately. Not knowing what the elements of murder are in Minnesota law it seems unwarranted for me to pre-judge the matter.

Litigation in the time of Covid

The outbreak of Covid-19 and the proclamation of a pandemic has been making most human activities challenging.  Litigation is no different: at present I’m looking at an array of hearing dates being pushed off into the ether for want of a jury.

For better or worse, the Courts can order matters to proceed as judge-alone trials rather than jury trials.  A short decision from the Supreme Court of Victoria gives some idea what factors will be considered in the time of Covid.

In the matter in issue the plaintiff alleged that he was sexually abused at a Victorian school.  Proceedings were issued in the Supreme Court of Victoria and both parties requested that it be heard by a jury.  The plaintiff subsequently asked for the matter to be heard without a jury, which the defendant opposed.

Photo by cottonbro on

Macaulay J noted that –

It is not currently known how long the suspension of jury trials will last. Doing the best I can, I think the projection is likely to be of the order of many weeks not just days. It could be a number of months.

He also noted that the effect of this would be to cause significant delays and extra strain on the Court system.  While the Court had a discretion to dispense with a jury in the interests of justice, a jury would generally decide the matter if a party so requested.  His Honour also observed that the Civil Procedure Act 2010 obliged him to promote the just, efficient, timely and cost-effective resolution of the issues in dispute.

The factors Macaulay J particularly considered relevant to the justice of the case were –

  1. The nature of the plaintiff’s injuries and the impact of the litigation process on him
  2. The “unprecedented nature of the current coronavirus crisis means that it is totally uncertain when this case could be heard again before a jury”
  3. What the case would be heard again it would be competing for a hearing date with many other matters.
  4. There was no factor in the case which would make a judge-alone trial unjust.
  5. The delay and the uncertainty as to a new hearing date stood to cause “real injustice to the plaintiff”.
  6. There was a public interest in cases being dealt with in an orderly, timely and cost-effective way.  This contended against deferring cases in a situation of uncertainty

The Court decided that the matter should proceed without a jury.

Mulquiney v Reynolds [2020] VSC 119

What is a dog?

Labradors like food.  The last one we had at the farm would eat anything his powerful jaws could grind up. He only came to grief when he tried it on a brown snake, with sadly fatal consequences (R.I.P. Roly).

So I was interested in a story that landed in my inbox this week.  According to 101.5 WPDH, Shannon Walton of Hopewell Junction, NY, fed her Labrador/beagle cross with “Blue Wilderness” dog food because it was advertised as “inspired by the diet of wolves.”  Her dog put on substantial weight and was diagnosed with diabetes and canine obesity.

The lawsuit claims that Blue Buffalo was deceptive in their advertising because the food contains “high levels of dietary carbohydrates, which are neither healthy for dogs nor a meaningful part of the diet of grey wolves.”

The Hopewell Junction woman is seeking a class-action lawsuit which she says could reach over $5 million.

This left me wondering what, specifically, such a claim would be for.  Strictly speaking, her dog is an item of property.  Presumably, Ms Walton would be entitled to the diminished value of the dog, which I suppose would be a few hundred dollars at most.  On the other hand, if the dog is viewed as part of her family, perhaps harm to it is something which the food manufacturer should reasonably have foreseen could cause mental harm to a person of ordinary fortitude (Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317).  If this is the case, then the claim may have significant value.  But, does this tend to treat Fido, not as an animal, but rather as a small human in a dog-suit?  And is this something the law should be doing?

Spirit Airlines, Weightlifting and Mail

My co-worker and good friend Sarah has recently completed a trip to the United States.  Unfortunately, thanks to the sterling work of Spirit Airlines, she returned with only the clothes she was wearing and without her weightlifting gear.  She is, not unreasonably, just a little miffed.


Long time readers may recall that I posted a note on Nicol v Air Maroc, a decision from the High Court of Sierra Leone in which an airline’s liability for the costs of lost luggage was explored.  No doubt, if all else fails, suitable litigation under the Warsaw Convention will set things to rights.  But this got me thinking: “I’m an old-fashioned sort of solicitor.  Is there an old-school way of dealing with this?”

There is, and it comes to us out of a foggy night on 5 April 1900, just off of Table Bay in South Africa.  The SS Winkfield, a troopship, collided with SS Mexican, a ship carrying passengers, freight and mail.  No lives were lost, but a quantity of mail went down with the Mexican.

SS Mexican
SS Mexican (Image from here)

Inevitably, litigation began for the value of the lost mail, lead by the Postmaster-General as bailee of the items.  Damages were agreed at £32,514, 17s 10d (current value £3,925,832.83 / AU$7,439,488.97 / US$5,052,959.06).  At first instance the claim was rejected on the grounds that, as bailee, the Postmaster had no liability for loss of the mail and therefore no standing to sue.  The Postmaster appealed.

Cockerham, Charles, active c.1900-1935; SS 'Winkfield' Bound for South Africa with Troops, July 1890
SS Winkfield (Image from here)

The English Court of Appeal (Collins MR, Stirling and Mathew LJJ) stated decisively that the Postmaster, being possessor of the mails, had a perfect right to sue for their loss.

[T]he root principle of the whole discussion is that, as against a wrongdoer, possession is title.  The chattel that has been converted or damaged is deemed to be the chattel of the possessor and of no other, and therefore its loss or deterioration is his loss, and to him, if he demands it, it must be recouped.

The Court also made an observation which would be on point for my friend Sarah if Spirit Airlines find they cannot come up with her belongings in a timely way.

[T]he obligation of the bailee to the bailor to account for what he has received in respect of the destruction or conversion of the thing bailed has been admitted so often in decided cases that it cannot now be questioned.

Loss of baggage by an airline being determined by case law from before the age of flight?  Sounds like fun to me!

The Winkfield [1902] P 42

Too soon?

An interesting case recently came out of California relating to prematurely commencing litigation.

Sherri Rasmussen (Image credit)

On 24 February 1986 Sherri Rasmussen was murdered.  The offender (Stephanie Lazarus) was not identified until 2009. Astonishingly, she was by then a detective with the Los Angeles Police Department. Lazarus was convicted of murder on 8 March 2012.

On 26 July 2010 Mrs Rasmussen’s parents issued proceedings against Lazarus in the Superior Court of Los Angeles County.  Lazarus raised a defence that their claim had been commenced too early (that is, before her conviction) (a “plea in abatement”).  California’s Code of Civil Procedure §340.3 states that

in any action for damages against a defendant based upon the defendant’s commission of a felony offense for which the defendant has been convicted, the time for commencement of the action shall be within one year after judgment is pronounced.

Judge White rejected Lazarus’ argument and ordered her to pay $10,000,000.00 compensation.  Lazarus appealed.

The California Court of Appeal agreed with the trial judge.  The Court found (first) that a plea in abatement must be pleaded promptly by the defendant or it is taken to be waived.  Here Lazarus could have raised the argument when she was served with proceedings in 2011.  She did not do so until 2016.

The Court also found that by the time Lazarus raised the point, the defect identified (lack of a criminal conviction) no longer existed.  The trial court was correct to ignore the issue.

Finally, as a matter of equity the trial court was right to disregard the defence.  If the judgement in favour of the Rasmussens were overturned, they would be time-barred from beginning the proceedings again.  This was not acceptable:

A defendant cannot untimely raise prematurity and then hide behind a statute of limitations which ran while the defendant did nothing to assert the plea.

The decision of the trial court was affirmed.  On 11 April 2018 the Supreme Court of California declined to hear a further appeal.

Rasmussen v Lazarus (2018) California Court of Appeal, 8 January 2018.

Courtside Coffee

Because it’s Friday, it’s a good time for a lighter post.

I was in the County Court a couple of days this week in a workers compensation matter. The morning of the first day was rather busy. How busy? It was 1pm when I finally had my first cup of coffee of the day (headaches were starting).

County Court, Melbourne
County Court, Melbourne

There was, however, a consolation. The forecourt of the County Court contains the Octane Coffee stand. It doesn’t look like much, but the coffee is always first class and served quickly. The hot chocolate is a particular highlight: some of the best I’ve ever had in Melbourne.

Octane Coffee, Melbourne
Octane Espresso, Melbourne

My dog-walking, real-estating friend Allie recently blogged about her delight at being able to drink Dunkin’ Donuts coffee again.  Anyway, it crossed my mind that most lawyers probably have a preferred courtside pit stop, where they can get a strong coffee or a soothing cup of tea for a stressed client. So lawyers, tell us what your court area haven is?

Gatecrasher gets crashed!

In case you’re wondering, simply being in uniform won’t get you immunity.


On 31 December 2009 Dillon Bracken gatecrashed a party at a hotel in Honolulu.  Kinchung Chung, a police officer, had been hired by the venue as a “special duty officer”.  While he wore his uniform and this work was approved by the police department, he was paid by the hotel directly and was considered to be off-duty from the police force.  Chung and a number of bouncers confronted Bracken.  A scuffle broke out between Bracken and the bouncers (not including Chung) in which Bracken was injured.

Bracken sued Chung for violating his rights to due process by failing to intervene and stop the alleged assault by the bouncers.

Every person who, under color of any [law] … of any State … subjects, or causes to be subjected, any … person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured … for redress: 42 USC §1983.

The US District Court dismissed the claim, finding that Chung was immune from suit and the claim in any event lacked merit.  Bracken appealed.

The appeal was upheld by the Ninth Circuit Court of Appeals.  It was accepted that Chung acted under colour of State law by invoking the authority of his uniform and badge.  However, he was not entitled to immunity from suit: There was no tradition of immunity for off-duty police acting as private security guards.  He was not carrying out public duties or doing the work of government [although one may wonder, then, why the Honolulu Police Department allowed “special duty” policing in the first place].

The Court of Appeal also considered that Bracken’s claim had merit.  While in general the State was not liable for failing to prevent a person coming to harm, a police officer was obliged to intervene where he had placed a person in danger.  Here, although it was foreseeable that Bracken would be injured by the bouncers, Chung had prevented him leaving.

The case was returned to the District Court for further proceedings.

Bracken v Chung (2018), Ninth Circuit Court of Appeals, 23 August 2017

Who are you working for?

Frank Benedetti was employed by Schlumberger Technology Corporation. Pursuant to that employment he worked on an oil well owned and operated by Cimarex Energy Company. On 9 December 2013 he was injured in a work accident. He sued Cimarex in the Canadian County District Court.

Image from here

Cimarex as well operator was considered to be immune from suit. The Oklahoma Workers Compensation Code [85 OS 2011 §302(A) and (H)] relevantly provided that –

The liability prescribed in this act shall be exclusive and in place of all other liability of the employer … at common law … for such injury … to the employee … except … where the employer has failed to secure the payment of compensation for the injured employee.

For the purpose of extending the immunity of this section, any operator or owner of an oil or gas well … shall be deemed to be an … employer for services performed at a drill site or location with respect to injured … workers whose immediate employer was hired by such operator or owner at the time of such injury.

The District Court summarily dismissed Benedetti’s claim. His appeal to the Court of Civil Appeals was dismissed. He appealed to the Supreme Court of Oklahoma.

The Supreme Court upheld his appeal. Following Strickland v Stephens Production Co., 2018 OK 6 it found that paragraph (H) was an unconstitutional “special law” breaching Art. 5 §59 of the Oklahoma Constitution

Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.

The case was remanded for further proceedings in the District Court.

Benedetti v Cimarex Energy Co, 2001 OK 21

No, don’t put it on Facebook

I’m not sure what George Orwell would have made of Facebook. I like to think he’d have been amused by the idea that social media would have put the Thought Police out of work. Lawyers everywhere are discovering, however, that it can keep them in work.

Big bro
Image from here

Ms Kelly Forman fell from a horse. She suffered spinal injuries and also acquired brain injury. She alleged that her brain injury caused cognitive problems which made it difficult for her to express herself. Among other things, she claimed that she had trouble using a computer and, in particular, spelling and remembering the rules of grammar so to express herself coherently. She sued the owner of the horse.

The defendant sought an order that the plaintiff provide access to her entire Facebook account on the basis that the photographs and written content were relevant to his defense, including showing the time it took the plaintiff to compose or respond to messages. The Supreme Court of New York County ordered the plaintiff to produce all photographs posted privately on Facebook prior to the accident which she intended to produce at trial, all photographs of herself posted privately after the accident, and records detailing each time she had posted a private message after the accident and the number of characters or words in the message.

The plaintiff appealed and the Appellate Division narrowed the order. The Defendant appealed to the New York Court of Appeals.

The Court of Appeals reinstated the original order. It rejected the idea that the scope of discosure of social media materials should be controlled by the accountholder’s privacy settings. The Courts should instead employ their well-established rules as to discovery, including as to preventing ‘fishing expeditions. When called upon to decide a dispute as to social media discovery –

courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.

As a generation rises whose entire life from conception onwards has been documented on Facebook, discovery disputes will be ever more important to personal injury lawyers.

Forman v Henkin (2018), New York Court of Appeals, 13 February 2018

Nothing to See Here

Interesting decision out of Texas on the subject of video surveillance.

Image from here


A worker suffered a back injury while working on an oil rig in January 2008.  He sued his employer under the Jones Act alleging negligence and supply of an unseaworthy vessel.  Four years and two spinal surgeries later he was placed under surveillance by his employer and filmed for about an hour performing a range of outdoor activities.

At trial the Harris County District Court considered the footage inadmissible without viewing it.  The jury found for the plaintiff.  On appeal the decision to exclude the footage was upheld. The employer appealed to the Supreme Court of Texas.

The Supreme Court found that the trial judge had erred.  A trial court could not properly exercise its discretion to exclude without viewing it.

We hold that, as a general rule, a trial court should view video evidence before ruling on admissibility when the contents of the video are at issue. We recognize circumstances might arise where viewing is unnecessary or extremely onerous. For example, “[t]here may be cases where the probative value of the evidence is so minimal that it will be obvious to the court that the potential prejudice . . . substantially outweighs any probative value the evidence might have.” Additionally, video depositions need not be viewed before ruling on objections unless the objection is specific to a visual aspect of the deposition. Exigencies of trial, moreover, could make it difficult to find time to view a late-offered video, especially if the video is lengthy. The parties could potentially address such timing issues by submitting representative excerpts for the trial court’s review. In any event, trial courts should “undertake their best efforts in attempting to view the subject visual recording prior to ruling on its admissibility.” Exceptions should be few and far between.

A new trial was ordered.

Diamond Offshore Services Ltd v Williams (Supreme Court of Texas, 2 March 2018)