Graeske v R (2015) H&FLR 2015-36

Joshua Graeske v The Queen (2015) H&FLR 2015-36

Court of Appeal of Victoria

28 August 2015

Coram: Maxwell P and Whelan JA

Appearing for the Appellant: Ms CA Boston and Mr A Imrie (instructed by Melasecca Kelly & Zayler)
Appearing for the Respondent: Ms D Piekusis (instructed by Ms V Anscombe, Acting Solicitor for Public Prosecutions)

Catchwords: Australia – Victoria – Australian football – assault – sentencing.

Facts: On 14 July 2012 the defendant (then aged 21) was playing football in an amateur match.  During the match he pulled an opponent to the ground and punched him a number of times, causing significant facial injuries.  He was charged with recklessly causing serious injury (Crimes Act 1958, §17).

The defendant pleaded guilty to the charge and was sentenced to be imprisoned for three years, to serve a minimum of two years: DPP v Graeske (County Court of Victoria, Judge Wischusen, 7 November 2014, unreported).  During the course of the hearing the Sentencing Amendment (Emergency Workers) Act 2014 commenced, the effect of which was (in part) to allow terms of imprisonment to be combined with community corrections orders. Due to an apparent oversight, neither the prosecution nor the defence addressed these amendments in their submissions to the court.

The defendant appealed against the sentence imposed.

Held: Allowing the appeal, setting aside the original sentence and re-sentencing the appellant, that –

1. Because no submissions were made in light of the Sentencing Amendment (Emergency Workers) Act 2014, the trial judge inevitably misdirected himself as to the available sentencing options.

2. Noting the appellant’s youth, difficult personal history and other factors, a sentence of imprisonment for one year followed by a community corrections order of three years (geared to address the appellant’s mental health and drug problems) was appropriate

Judgment

The Court’s judgment is available here.

Patsuris v Gippsland & Southern Rural Water Corporation (2014) H&FLR 2015-34

Tom Patsuris v Gippsland & Southern Rural Water Corporation (2014) H&FLR 2015-34

Supreme Court of Victoria

15 December 2014

Coram: McDonald J

Appearing for the Appellant: P. Cawthorn QC and B. Miller (instructed by Morrison & Sawers)
Appearing for the Respondent: R. Sadler (instructed by DLA Piper)

Catchwords: Australia – Victoria – water law – administrative law – food production – irrigation – infrastructure – rainfall – flooding – compensation

Facts: The Appellant operated a market garden at Werribee South.  His land was irrigated by a system of channels managed by the Respondent.  The channels funnelled water into a network of drains which directed the water away from the land.  In 2010 a new culvert was installed in one of the drains (and off the appellant’s land) to allow access to the property of a third party.  The respondent mandated the design parameters of the new culvert such that it would cater for a 1 in 50 year rainfall event.

In February 2011 rainfall occurred which was in excess of a 1 in 100 year event.  The appellant’s land was flooded causing significant loss and damage.  The appellant brought proceedings against the respondent under the Water Act 1989 (Vic), §157.  That section relevantly provides that –

(1)     If —

(a)     as a result of intentional or negligent conduct on the part of [a water] Authority in the exercise of a [statutory] function …, a flow of water occurs from its works onto any land; and

(b)     the water causes —

(i)     injury to any other person; or
(ii)     damage to the property (whether real or personal) of any other person; or
(iii)     any other person to suffer economic loss—

the Authority is liable to pay damages to that other person in respect of that injury, damage or loss.

(2)     If it is proved in a proceeding brought under subsection (1) that water has flowed from the works of an Authority onto any land, it must be presumed that the flow occurred as a result of intentional or negligent conduct on the part of the Authority unless the Authority proves on the balance of probabilities that it did not so occur.

(3)     For the purposes of a proceeding brought under subsection (1)—

(a)     a flow of water is to be taken to have occurred as a result of intentional conduct on the part of an Authority if the flow—

(i)     was designed or intended by the Authority; or
(ii)     inevitably and without intervening cause resulted from the exercise of a power by the Authority; and

(b)     in determining whether or not a flow of water occurred as a result of negligent conduct on the part of an Authority, account must be taken of all the circumstances including any omission or failure, in the planning, design, construction, maintenance or operation of the works, to provide reasonable standards of capacity or efficiency or exercise reasonable care or skill having regard to the following matters—

(i)     the state of scientific knowledge and knowledge of local conditions at any relevant time;
(ii)     the nature and situation of the works;
(iii)     the service to be provided by the works;
(iv)     the circumstances and cost of—

(A)     the works; and
(B)     the maintenance and operation of the works; and
(C)     works which it would have been necessary to construct to avoid the occurrence of any relevant injury, damage or loss.

The appellant’s claim was rejected at first instance: Patsuris v Gippsland & Southern Rural Water Corporation (Victorian Civil & Administrative Tribunal, S.M. Riegler, 14 October 2013, unreported).  The Tribunal found that –

(a) It was not reasonable to require the respondent to have designed its drainage and irrigation systems to cater for a rainfall event of greater than 1 in 100 years.
(b) The appellants land had been flooded because the water runoff could not discharge rapidly enough through two culverts (other than the new culvert, which did not cause the flooding).
(c) The severity of the storm meant that such reverse flow of water as occurred would have taken place regardless of the new culvert.

The appellant appealed to the Supreme Court of Victoria seeking judicial review of the decision.

Held: Dismissing the appeal, that –

1. For the purposes of an application for judicial review, to establish that a finding of fact was not open to a decision maker it must be established that there was no evidence to support the disputed finding.

Myers v Medical Practitioners’ Board of Victoria, 18 VR 48 (Vic., 2007), considered.

2. Under §157 a flow of water is deemed to have occurred as a result of a water corporation’s intentional conduct if the corporation designed or intended the flow or it inevitably and without intervening cause resulted from the corporation’s exercise of power.  However, the fact that a corporation’s conduct in approving the design of a culvert was intentional does not in itself support a conclusion that a flow of water was caused by that conduct: there must still be evidence that the design caused the relevant flooding.

State Rivers & Water Supply Commission v Crea [1980] VR 513 (Vic., 1979), considered.

3. A claim under §157 is a freestanding cause of action.  There is no independent duty of care in accordance with common law principles arising under the tort of negligence*.

South East Water Ltd v Transpacific Cleanaway Pty Ltd, 27 VR 387 (Sup. Ct. Vic., 2010), followed

Judgment

The Court’s judgment is available here.

Note

Quaere whether it is still possible to claim in negligence for harm arising from the flow of water caused by the act of a water authority.

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.

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

* 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.

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.

Advertisement

Logo-and-Coat-of-Arms-2

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).

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

(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

Advertisement

cyclistlaw 2015

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.

Advertisement

Logo-and-Coat-of-Arms-2

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.

Advertisement

BABL ad 2015

Bay Area Bicycle Law

In re death of Lynch (2014) H&FLR 2015-18

Inquest into the death of Brendan Paul Lynch (2014) H&FLR 2015-18

Coroners’ Court of Victoria

2 July 2014

Coram: Coroner Carlin

No appearances (finding without inquest)

Catchwords: Victoria – Coroner – cyclist – highway – hit by bus – fail to give way – signage

Facts: The deceased was aged 52 years and a keen recreational cyclist.  On 31 March 2013 he was cycling from Benalla to Melbourne.  At around 1:55pm he was cycling in the emergency lane of the Hume Freeway at the point where the Freeway merges with the Northern Highway.  He turned his bicycle to the left, bringing him across the path of a bus which was merging onto the Hume Freeway.  Mr Lynch sustained fatal injuries in the collision.

Witnesses said that the deceased had extended his left arm to signal a left turn, but did not agree on whether he looked back for traffic.  The witnesses agreed that the bus driver could not have avoided the collision.  The bus’ speed was estimated at between 80-90 kph (50-56 mph).  A sign on the on-ramp warned of cyclists crossing within the next 150 metres.

Held: 1. That the deceased had failed to give way to the bus pursuant to the Road Safety Road Rules 2009, r.74 and that there was nothing the driver could have done to avoid the collision.

2. Effective signage may have prevented the deceased crossing the on-ramp in the manner which he did.  Signs are particularly desirable in circumstances where the road rules are likely to be disobeyed.  In the present case, Mr Lynch’s non-compliance may have been due to fatigue and a failure to think clearly.

3. It was recommended that a sign reading “cross here with care” should be erected at the point of collision, and that “cross here with care” signs in general should also indicate that a cyclist must give way to merging traffic and cross the on-ramp at a right angle at a particular point.

Judgment

The Court’s judgment is available here.

Advertisement

Heather ad March 2015

Boroondara City Council v Cattanach (2004) H&FLR 2015-17

Boroondara City Council v Ellen Cattanach (2004) H&FLR 2015-17

Court of Appeal (Victoria)

20 August 2004

Coram: Winneke P, Chernov JA and Bongiorno AJA

Appearing for the Appellant: Messrs A.G. Uren Q.C. and G.J. Moloney (instructed by Hunt & Hunt)
Appearing for the Respondent: Messrs D.A. Kendall Q.C. and David Martin (instructed by Hounslow & Associates)

Catchwords: Victoria – runner – defective pavement – trip and fall – injury – negligence

Facts: On the morning of 12 December 2000 the plaintiff was running recreationally along a footpath in the defendant’s municipality.  She ran with two small dogs which were at the end of a leash which she was holding.  As she passed in front of 39 Gordon Street, Balwyn, she tripped on an uneven section of footpath and fell, suffering significant injuries.

The occupant of 39 Gordon Street, Balwyn, had alerted the defendant to the damage to the footpath in 1995 and 1996.  In 1997 the defendant had removed a tree adjacent to the defect but took no steps to repair the footpath..  Within two weeks of the plaintiff’s fall repairs were effected; it was common ground that the repairs were inexpensive.

The plaintiff successfully sued the municipality for negligently failing to make repairs and was awarded damages:  Cattanach v Boroondara City Council (County Ct. of Vic., Judge Bourke, 20 June 2003, unreported).  The defendant appealed.

Held: Per curiam, allowing the appeal and dismissing the claim, that

1. A municipality is not under a duty to prevent or eliminate all dangers in footpaths.  In most cases, where a municipality knows or ought to know of such a danger, it is obliged to remedy it only if the danger would not be obvious to an ordinary, reasonable pedestrian taking proper care for their own safety.  The onus is on the plaintiff to establish that the hazard was not one which could have been avoided with the exercise of reasonable care.

Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Newcastle City Council v Lindsay (NSW Ct App., Giles and Tobias JJA, McLellan AJA, 22 June 2004, unreported); and Temora Shire Council v Stein (2004) 134 LGERA 407, considered.

2. Whether a defect in a footpath causes a reasonable foreseeability of harm, and whether the hazard is obvious, must be considered from the perspective of the ordinary, reasonable pedestrian keeping a proper lookout.  That is, from the perspective of a person walking.  Persons who are not walking but (for example) running, skating, cycling are required to pay greater attention to the state of the path given the greater difficulty in observing hazards when moving faster than a walk.  These users should not expect councils to maintain footpaths to a higher standard than that required for safe walking.

Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512

Judgment

The Court’s judgment is available here.

Advertisement

cyclistlaw 2015

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.

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

* 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).

Advertisement

Logo-and-Coat-of-Arms-2