McDuffy v Interstate Distributor Co (2005) H&FLR 2015-6

 

John McDuffy v Interstate Distributor Co (2005) H&FLR 2015-6

Multnomah County Circuit Court (Oregon)

5 October 2005

Coram: Not known

Appearing for the Plaintiff: Michael Ross (of Slater Ross)
Appearing for the Defendant: Alan Lee (of Bullard Law)

Catchwords: Oregon – truck driver – obesity – discrimination – compensation – quantum.

Facts: The plaintiff had worked as a commercial driver since 1987 and had been employed by the defendant since April 2003. He was classed as morbidly obese, being 6 feet tall and weighing 550 pounds (250 kilograms).

In May 2004 he was assigned to a truck which was smaller than usual and in which the steering mechanism could not be adjusted.  He was unable to fit in the cab and reported the problem, after which he was suspended from duty without pay.  In late May he was assigned a larger truck, but then again suspended pending medical clearance for work.  On examination by a doctor it was found that he was able to drive a truck and had only minor other limitations on his capacity to work. Despite this his suspension was not lifted.

The plaintiff brought proceedings against his employer for discrimination.  He tendered in evidence video footage of him performing his work duties.

Held: The jury upheld the plaintiff’s claim and awarded damages of $109,000.00.

Judgment

The outcome was a jury finding and no written reasons are available.  The report prepared based on an account in the Seattle Times of 7 November 2005 and the Oregonian of 6 November 2005.

Trade & Labour Union v Local Gov’t Assoc’n (2014) H&FLR 2015-3

Trade & Labour Union v Local Government Association (2014) H&FLR 2015-3

European Court of Justice

18 December 2014

Coram: Bay Larsen P, Jürimäe, Malenovský, Safjan and Prechal JJ

Appearing for the Plaintiff: Jacob Sand (of Gorrissen Federspiel)
Appearing for the Defendant: Y. Frederiksen (instructors not known)
Appearing for the Danish Government: C. Thorning and M. Wolff (instructors not known)
Appearing for the European Commission: M. Clausen and D. Martin (instructors not known)

Catchwords: European Union – Denmark – employment law – dismissal – obesity – discrimination – disability.

Facts: Mr Karsten Kaltoft was employed from 1 November 1996 by the Municipality of Billund as a childminder, initially on a fixed term contract and subsequently on a permanent contract.  It is common ground that at all material times the plaintiff was obese within the definition promulgated by the World Health Organization.  In November 2010 the Municipality terminated Mr Kaltoft’s employment, asserting that this followed a reduction in the number of children requiring care.  Mr Kaltoft considered that his dismissal had been motivated by his obesity.  The plaintiff brought proceedings on his behalf against the defendant, which represented his employer.

The proceeding was based on Denmark’s Act Respecting Prohibition Against Discrimination on the Labour Market (No. 1349 of 2008), ¶2(1) and ¶7(1), which implements Articles 1 and 2 of European Council Directive 2000/78 prohibiting direct or indirect discrimination on grounds of “religion or belief, disability, age or sexual orientation”

The trial court stayed the proceedings and sought a preliminary ruling from the European Court of Justice as to whether (a) it was unlawful for a government employer to discriminate on the basis of obesity and (b) obesity can be deemed to be a disability and, if so, in what circumstances will that disability be protected from discrimination: Fag og Arbejde v Kommunernes Landsforening (Kolding District Court, 25 June 2013, unreported).

Held: referring the matter back to the trial court, that –

1. Neither Directive 2000/78 nor the Charter of Fundamental Rights of the European Union can be extended by analogy beyond the grounds of discrimination they identify.  Accordingly, European law does not include a general principle of non-discrimination in employment based on obesity.

Chacón Navas v Eurest Colectividades SA, EU:C:2006:456; Coleman v Law, C-303/06, EU:C:2008:415, followed
Åklagaren v Åkerberg Fransson, C-617/10, EU:C:2013:105, considered

2. ‘Disability’ in Directive 2000/78 refers to a limitation resulting from (inter alia) physical impairment which in combination with other barriers may hinder the worker’s participation in employment on an equal footing with other workers. Because obesity does not necessarily pose a limitation it is not in itself a disability (1).  However, should a worker’s obesity give rise to long-term limitations which may hinder their capacity to work on an equal footing with other workers, it will then constitute a disability pursuant to Directive 2000/78

HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening, EU:C:2013:222, Z v A Government department and Board of management of a community school, C-363/12, EU:C:2014:159; and Glatzel v Freistaat Bayern, C-356/12, EU:C:2014:350, considered.

3. It is not relevant to the scope of Directive 2000/78 whether or not a person has contributed to their own disability (2).

HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening, EU:C:2013:222, considered.

Judgment

The Court’s judgement is available here.

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(1) Cf McDuffy v Interstate Distributor Co. (Multnomah Co. Cir. Ct., 2005), Seattle Times, 7 November 2005.  In this case, a 550-pound truck driver claimed to have been wrongfully suspended from duty based on his weight.  He was awarded $109,000.00 after he successfully demonstrated to the court that, regardless of his weight, he was able to perform his duties with only minor limitations.

(2) The evidence indicates that Mr Kaltoft had been unable to sustain any significant weight loss: see ¶19. Conceivably the Court might have assessed this point differently if there were evidence that Mr Kaltoft’s weight was wholly self inflicted: Noting the discomfort which overweight children provoke in some people, it is possible that an argument that Mr Kaltoft was ‘modelling bad behaviours’ would have prompted the Court to formulate an exception on the basis that this would be in the best interests of the children (cf Sec’y of Dep’t of Health and Comm’ty Serv. v JWB and SMB 175 CLR 218 (Austl., 1992)).  Such a line of analysis would, however, present significant further legal problems as to what behaviours ought be modelled.  For example, should an obese carer be required to complete a marathon or train for an ironman competition?  This would raise intriguing questions in relation to autonomy and personal time: Cole v South Tweed Heads Rugby League Football Club Ltd, 217 CLR 469, 476-477 per Gleeson CJ (Austl.,2004); Young v Workers Compensation Appeals Board (2014) H&FLR 37.

State v Corrigan (1998) H&FLR 2014-63

State v Marlene Corrigan (1998) H&FLR 2014-63

Contra Costa County Superior Court (California)

27 February 1998

Coram: Arnason J.

Appearing for the Prosecution: Brian Haynes (1) (of Contra Costa District Attorney’s Office)
Appearing for the Defendant: Laurie Saunders and Michael Cardoza (of Cardoza Law Offices)

Catchwords: California – child abuse – obesity – heart failure – bed sores – sentence.

Facts: The defendant was the mother of Christina Corrigan, who died of congestive heart failure in November 1996 aged 13 years.  At the time of her death, the deceased weighed 680 pounds (309 kilograms) (2).  The evidence indicated that she was suffering from bedsores, that excrement was lodged in the folds of her skin, and that she had spent her final months immobile on a dirty sheet in front of a television in the family home.  She had not attended school since Grade 6.   She had been seen by medical practitioners 90 times up to age 9 (at which time she weighed 237 pounds / 108 kilograms) but had received little or no medical care since that time.

The defendant was charged with felony child abuse.  She contended that she had been overwhelmed with personal responsibilities and posited that the deceased may have suffered from Prader-Willi Syndrome.  She denied being aware of her daughter’s bedsores.

Held: Convicting the defendant of misdemeanour child abuse, that –

1.  Conviction of a misdemeanour rather than a felony was appropriate because it was her passive rather than active misconduct that contributed to the deceased’s congestive heart failure (3).

2.  The maximum penalty for this offence was six months imprisonment; the court however imposed a sentence of 240 hours community service, three years probation (to include counselling and being barred from working in child care) and a $100.00 fine.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the Philadelphia Inquirer of 10 January 1998, the Los Angeles Times of 2 March 1998 and the San Francisco Chronicle of 28 February 1998.

Note

This case suggests that a person’s duty to take active steps to prevent a family member coming to harm (4) will take priority over the absence of a general duty to rescue a person intent on injuring themselves (5)

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(1) Since appointed to the Contra Costa County Superior Court.

(2) The weight may be considered significant: a weight of this magnitude, even in an adult, is noted to pose very considerable problems for both mobility and medical care: Dr Edward Thompson, ‘Supersize Me’, Pulse, 22 November 2013.  Medical care is likely to require long-term hospitalization and may cause irreparable injury: Dr Karen Hitchcock, ‘Fat City’, 87 The Monthly __ (2013).  An indication of the potential for significant discomfort associated with pronounced skin folds is offered by the post “Day in the Life: Shower, Chafing, & Jock Itch” on the blog Living ~400lbs … and believe me I am still alive.

(3) Cf R v Stone and Dobinson [1977] 2 All ER 341 (Eng. Ct. of App.), in which the defendants were convicted of manslaughter for failing to take adequate steps to prevent a mentally unbalanced relation who lived with them from starving and mistreating herself to death.

(4) R v Russell [1933] VLR 59 at 67-68 (per Cussen ACJ) and semble 76-77 (per Mann J); but see 83 (McArthur J, dissenting) (Sup. Ct. of Vic.)

(5) Stuart v Kirkland-Veenstra (2009) 254 ALR 432 at 457 (per Gummow, Hayne and Heydon JJ) and semble 463 (per Crennan and Kiefel JJ) (High Ct. of Aust.)

NHS Trust v K (2012) H&FLR 2014-29

A National Health Service Trust v K and Anor (2012) H&FLR 2014-29

Court of Protection (UK)

15 October 2012

Coram: Holman J

Appearing for the Applicant: Mr Charles Utley (instrusted by the applicant’s legal department)
Appearing for the First Respondent: Ms Amy Street (instructed by the Official Solicitor)
Appearing for the Second Respondent: Mr Charles Utley (instrusted by Kennedys Law LLP)

Catchwords: United Kingdom – Person under disability – cancer – surgery – obesity – diabetes – asthma – heart dysrhythmia – best interests – sedation

Facts: A 61 year old lady was diagnosed with uterine cancer. The National Health Service (NHS) Trust responsible for her care considered that she should undergo a hysterectomy and bilateral salpingo-oophorectomy and lymphnodectomy. Non-surgical treatments were available but there was reason to doubt their efficacy. She suffered from a 40 year history of a psychotic disorder and chronic schizophrenia and (among other things) denied that she suffered cancer or required surgery. It was common ground that she was unable to make informed decisions as to major medical treatment.

The patient suffered marked co-morbidities including superobesity, diabetes and pronounced asthma, all of which increased the risk of serious complications resulting from the surgery. She also had a heart dysrhythmia which created a risk that agitation (such as that caused by fighting physical restraints) might be fatal.

The Official Solicitor, as her litigation friend, considered the proposed surgery too dangerous. The NHS Trust applied to the Court of Protection for approval to perform the surgery.

Held: Granting the application –

1. The Court of Protection is required to make the decision for the patient in her best interests. To assess where her best interests lie, the court must consider all relevant circumstances including advantages and disadvantages.

2. In order to minimise the risk of the patient reacting advsersely to the prospect of surgery, it would be lawful to sedate her before telling her of the operation to be performed, and before administering anaesthesia.

DH NHS Foundation Trust v PS [2010] Med LR 320, [2010] EWHC 1217 (Fam), [2010] Fam Law 927, [2010] 2 FLR 1236, considered.

3. A lymphnodectomy would add to the duration and gravity of the surgery and increased the risks involved. In the circumstances, this element of the surgery was not approved.

Judgment

The Court’s judgment is available here.

Hinojosa v Livingston (2014) H&FLR 2014-28

Ramona Hinojosa v Brad Livingston and Ors (2014) H&FLR 2014-28

United States District Court (S.D. Texas)

16 January 2014

Coram: Ramos J

Appearing for the Plaintiff: Jeff Edwards (of Edwards Law)
Appearing for the Defendants: Not identified.

Catchwords: Texas – prison – negligence – hyperthermia – hypertension – diabetes – depression – schizophrenia – obesity – death – Americans with Disabilities Act – Rehabilitation Act – Federal Rules of Civil Procedure

Facts:  On 29 August 2012 the plaintiff’s son died of hyperthermia while incarcerated in a prison operated by the Texas Department of Criminal Justice.  The plaintiff alleged that the defendant had failed to accommodate the deceased’s disabilities (particularised as hypertension, diabetes, depression, schizophrenia and obesity), resulting in his death.  It was contended that this breached the Americans with Disabilities Act (42 USC §12132) and the Rehabilitation Act (29 USC §794), giving her a entitlement to recover damages.

The defendant applied to dismiss the proceedings for failure to state a claim under r. 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively that she be required to re-plead sufficient facts to identify the elements of her causes of action under the Acts.

Held: Denying the application, that –

1.  It was sufficient to state a claim for the plaintiff to allege that the defendant knew of the risks and dangers of certain health conditions and medications, that it knew the deceased suffered from those conditions and used those medications, and that despite having that knowledge, the defendant failed to make reasonable accommodations, as a result of which the deceased suffered greater pain and punishment than non-disabled prisoners (i.e. death).  Although all inmates faced the same environmental conditions, they were more burdensome for the deceased because of his disabilities.

2.  If a defendant knows of an individual’s disability and needs but takes no action, it will not be necessary for the disabled person to have requested an accommodation to state a claim under the Americans with Disabilities Act.

McCoy v Texas Department of Criminal Justice, CA No. C-05-370 (S.D. Tex. May 19, 2006), followed

Judgment

The Court’s judgment is available here.

Official Veterinarian v Unidentified Defendants (2013) H&FLR 2014-21

Official Veterinarian v Unidentified Defendants (2013) H&FLR 2014-21

Augsburg District Court

c. 9 January 2013

Coram: Wieser M.

Appearing for the Prosecutor: Not known

Appearing for the Defendants: Not known

Catchwords: Germany – Bavaria – criminal law – dog – overfeeding – obesity – cruelty to animals

Facts: The defendants were a couple aged 69 and 71 years.  In October 2010 they came into possession of a Pekinese dog.  It was alleged that they overfed her such that her weight increased to 22 kilograms (48.4 pounds).  The standard weight of a Pekinese is around 6 kilograms (13.2 pounds).  Advice from a veterinarian as to proper feeding had been rejected.

In April 2012 the dog’s condition was reported to authorities by one of their neighbours.  The dog was found to be suffering two torn cruciate ligaments, extreme shortness of breath and had an inaudible heartbeat.  The animal was unable to walk and instead moved by dragging itself.  Destruction of the animal was recommended*.  The owners were charged with breaches of the Animal Welfare Act.  They responded that the dog was overweight when they acquired it and in particular denied feeding it chocolate.

Held: The charges were upheld.  A penalty of several thousand Euros was imposed and the offenders were ordered to perform 80 hours of community service**.

Judgment

No written judgment is available.  The report was compiled based on reports in the Augsburger Allgemeine on 3 August 2012 and 9 January 2013, the Welt of 8 January 2013, the Süddeutsche Zeitung of 24 August 2012 and the Sächsischen Zeitung of 2 August 2012.  Translations by Google.

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* The dog was ultimately given to another owner and at last report weighed 12 kilograms.

** An appeal against the penalty was abandoned.

Kalloponi Comércio de Alimentos v Unidentified Respondent (2010) H&FLR 2014-13

Kalloponi Comércio de Alimentos v Unidentified Respondent (2010) H&FLR 2014-13

Regional Labour Court of Rio Grande do Sul

26 October 2010

Coram: Not reported.

Appearing for the Appellant: Not reported
Appearing for the Respondent: Vilson Natal Arruda Martins

Catchwords: Brazil – workers compensation – McDonald’s – manager obesity – required to consume products – meal break – mystery shoppers – compensation – liability

Facts: The appellant operated a McDonald’s franchise in Brazil. It employed the respondent as manager of one of its restaurants over a twelve year period. It was alleged that over this time his weight increased from around 70 kilograms (154 pounds) to 105 kilograms (231 pounds), by which time he was classed as obese. The respondent alleged that this was caused by the appellant’s policy of using “mystery shoppers” to assess the cleanliness, quality and management of its stores, which resulted in him needing to taste hamburgers, fries, soft drinks and ice cream regularly. He further alleged that, during meal breaks, the appellant’s employees were provided with a meal consisting of a burger, fries and soft drink which could not be exchanged for cash or food stamps. He further asserted that his work required long and irregular hours with inadequate rest breaks.

The respondent sought compensation from the appellant for his obesity. The claim was upheld at first instance and compensation was awarded of R40,000 (Brazilian Reals). The employer appealed.

Held: allowing the appeal in part and rejecting it in part –

1. Although genetic factors and a sedentary lifestyle were possible causes of obesity, this did not relieve the employer of liability.

2. While it was the worker’s responsibility to adopt a healthy diet, the conditions of his employment had forced him to consume the employer’s products.

3. The compensation awarded was properly to be reduced from R48,000.00 to R30,000.00. However, the appellant was required to assist the respondent to cover the costs of medical treatment aimed at weight reduction.

The court appears to have had regard to the fact that master brewers and winemakers are regularly compensated for developing alcoholism as a result of their duties.

It appears dissenting judgments were entered but details are not available.

Judgment

A copy of the Court’s written reasons cannot be located. Details in this report were obtained from the press office of the Court, the website of the firm Barça & Associates, the accounts in the journals Zero Hora and Economia & Negócios, and the blogs Nosso Povo, and Blog da Saúde. Translations by Google.

An appeal was considered but appears not to have been pursued.

Varipatis v Almario (2013) H&FLR 2014-9

Varipatis v Almario (2013) H&FLR 2014-9

Court of Appeal of New South Wales

18 April 2013

Coram: Basten, Meagher and Ward JJA.

Appearing for the Appellant: Mr D Higgs SC and Ms E Peden (instructed by TressCox Lawyers)
Appearing for the Respondent: Mr DE Graham SC and Mr NJ Broadbent (Instructed by Turner Freeman)

Catchwords: New South Wales – obesity – liver disease – cancer – medical practitoner – refusal to attempt weight loss – failure to treat patient’s obesity – negligence – bariatric surgery – reasonable care – breach of duty – state of medical knowledge

Facts: Mr Almario (plaintiff) was morbidly obese. It was common ground that his obesity resulted in a number of conditions including liver disease which progressed to cirrhosis and finally to terminal liver cancer. He was a patient of Dr Varipatis (defendant) from August 1997 to February 2011. On 27 April 1998 the appellant referred him to a Dr Yates for pulmonary problems. Dr Yates saw the appellant twice in June and July 1998 and recommended that he be referred to a specialist at the obesity unit of a major hospital. When the plaintiff consulted the defendant on 30 July 1998, he formally declined such a referral and stated that he would not attempt weight loss.

The plaintiff sued the defendant on the basis that he (the defendant) had failed to take necessary steps to treat the plaintiff’s obesity, resulting in him developing the liver conditions.

At trial the court held that the defendant had been negligent in failing to refer the plaintiff to a bariatric surgeon by 30 July 1998, in failing to refer him to an obesity clinic, and in failing to refer him to a hepatologist or similar physician by 30 September 2000. However, only the failure to refer him to a bariatric surgeon was found to be causative*.  The defendant appealed.

Held: Upholding the appeal –

Per Basten JA (Ward JA agreeing) and Meagher JA –

(1) To take reasonable care for the health of a patient, a general practitioner may be obliged to advise bluntly that weight loss is required, to discuss how this may be achieved, and to encourage them to accept suitable referrals. However, the general practitioner’s duty of care does not require an exercise in futility: if a patient declines to take the advise of his general practitioner and appropriate specialists there is no breach of duty in failing to write a further referral.

(2) On the state of medical knowledge in 1998, a reasonable general practitioner would not have referred the plaintiff to a bariatric surgeon at that time. Accordingly, Dr Varipatis had not been negligent in failing to make such a referral.

Per Basten JA (Ward JA agreeing) –

(3) On the state of medical knowledge in 2000, it was unlikely referral to a hepatologist would have resulted in any particular recommendation in relation to weight loss.

Judgment

The Court’s judgment is available here.

On 16 August 2013 the High Court of Australia declined to hear an appeal from the Court of Appeal’s decision: Almario v Varipatis [2013] HCATrans 193

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* Almario v. Varipatis (No. 2) [2012] NSWSC 1578

Whittaker v America’s Car-Mart Inc. (2014) H&FLR 2014-7

Whittaker v America’s Car-Mart Inc. (2014) H&FLR 2014-7

United States District Court (E.D. Missouri)

24 April 2014

Coram: Limbaugh DJ

Appearing for the Plaintiff: Mr Mark Welker of Jackson & Welker)

Appearing for the Defendant: Not identified.

Catchwords: Missouri – termination of employment – obesity – Americans with Disabilities Act – disability – discrimination

Facts: The plaintiff commenced employment with the defendant in August 2005.  He was dismissed from the position of General Manager on 1 November 2012.  He alleged that he was dismissed by reason of his severe obesity which he asserted was a disability within the meaning of the Americans with Disabilities Act 1990 (Act).  He did not require any special provision to be made by his employer in order to discharge his duties.

The defendant applied to dismiss the discrimination proceeding on the basis that severe obesity is not a disability under the Act unless it relate to an underlying physiological condition.

Held, dismissing the application,

(1) The Americans with Disabilities Amendments Act 2008 (Amending Act) requires “disability” to be construed in favour of broad coverage of claimants.

Toyota Manufacturing, Kentucky, Inc v Williams, 534 US 184 (2002), disapproved.

(2) Because of the expanded coverage effected by the Amending Act, it was open to argue that obesity can be a disability.

Lowe v American Eurocopter LLC, No. 1: 10CV24-AD (N.D. Miss. Dec. 16, 2010), followed.

Judgment

The Court’s judgment is available here.

Prosecutor v Liam Johnston (2013) H&FLR 2014-1

Prosecutor v Liam Johnston (2013) H&FLR 2014-1

Livingston Sheriff Court (Scotland)

Circa 4 October 2013

Coram: Sheriff Rafferty

Appearing for the prosecutor: Not known

Appearing for the defendant: Alan Jackson (solicitor)

Catchwords: Scotland – fraud – fail to attend – sentencing – arrest – obesity

Facts: On four occasions in or about 2013 the defendant bought pizzas valued at about £30.00 each using another person’s credit card.  He pleaded guilty to obtaining goods by fraud.  He was ordered to pay compensation to the relevant Domino’s Pizza outlet (it is unclear why he was not ordered to compensate the card holder) but failed to do so.

The matter was again brought before Livingston Sheriff Court for formal sentencing.  The defendant – whose reported weight was approximately 254 kilos / 560 pounds – did not attend.  Counsel for the defendant advised the Court that he (the defendant) had“extreme difficulty getting out of the house [and] … can’t physically get out of the house even with assistance”.

Held: Semble, that a defendant’s physical size can be a relevant consideration for the Court in considering whether to grant a warrant for their arrest.  Per Sheriff Rafferty: “’It’s only because I can see huge practical difficulties with him being apprehended by the police that I’ll not grant a warrant in this case.”

Judgment

No written judgment available.

Sources: Reports in the Mirror, Daily Mail, and Scotsman.