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%.

Police v Unidentified Driver (2014) H&FLR 2014-62

Police v Unidentified Driver (2014) H&FLR 2014-62

Wonthaggi Magistrates Court (Victoria)

c. 26 November 2014

Coram: Magistrate Raleigh

Appearing for the Prosecution: Leading Senior Constable Kimberly Stewart (instructed by Victoria Police)
Appearing for the Defendant: Ruby Oldham (of Oakleys McKenzie-McHarg)

Catchwords: Victoria – traffic offences – stop sign – school crossing – children – recklessly endangering life – sentence

Facts: The defendant drove dangerously on two occasions.  On 11 November 2013, while on her way to take her children to school, she ‘ran’ a stop sign.  She then sped through a school crossing at 60 km/h.  After dropping off her children, she ‘smoked’ her tyres while performing a U-turn, and then sped through the school crossing again.  Subsequently, on 8 March 2014, she was seen travelling between 60-70km/h in a 60 km/h zone.  She stopped at an intersection and again ‘smoked’ the tyres when accelerating away.

These incidents breached a community corrections order which had previously been imposed for another matter.  She was charged with a number of offences including reckless conduct endangering life (Crimes Act 1958 (Vic), §22).

Held: The Court noted that the defendant’s actions had the potential to kill her own children as well as those of others.  His Honour oberserved that the children may be safer without their mother and that her previous court appearance had not affected her behaviour.  He noted there was evdience she was continuing to use marijuana.

The defendant was sentenced to three months imprisonment, suspended for 12 months.  Her drivers licence was cancelled for 12 months and fined her $500.00.

Judgment

No written judgment is available.  The report prepared based on the account in the South Gippsland Sentinel-Times, 2 December 2014, p.25.

Note

The case is reported here because of its potential relevance to dangerous driving in the vicinity of athletic events.

Asquith v Transport Accident Comm’n (2014) H&FLR 2014-52

Jessica Asquith v Transport Accident Commission (2014) H&FLR 2014-52

County Court of Victoria

22 July 2014

Coram: Judge Macnamara

Appearing for the Plaintiff: Ms Jacinta Forbes (instructed by Riordan Legal Pty Ltd)
Appearing for the Defendant: Mr Paul Jens and Ms Sasha Manova (instructed by the Solicitor to the Transport Accident Commission)

Catchwords: Australia – Victoria – transport accident – serious injury – athlete – cycling.

Facts:  The plaintiff suffered injuries including vertebral fractures* in a road accident on 29 January 2011.  She applied to the Court for a finding that she had sustained a ‘serious injury’, so to be entitled to sue and claim common law damages for her injuries from the other driver.  Section 93(17) of the Transport Accident Act 1986 (Vic) relevantly defines a ‘serious injury’ as “serious long-term impairment or loss of a body function”

It was found that her capacity to engage in her preferred employment had been limited but was substantially intact.  Concerning other consequences, the plaintiff’s evidence was that she had been a keen athlete prior to the accident including engaging in cycling long distances.  It was accepted by the court that her injuries would cause pain and restrictions which would prevent her engaging in outdoor recreation with the same freedom as before the accident.  However, she had retained the capacity to engage to a degree in horse riding, jet skiing and mountain biking.

Held: Dismissing the application, that –

1.  Whether the plaintiff satisfies the serious injury test must be assessed at the date of the hearing.

Phelan v Transport Accident Commission [2013] VSCA 306, followed.

2.  For an injury to be classed as ‘serious’ the impairment or loss of function suffered  must be both serious and long term.  To be considered serious, the consequences must be serious for the particular applicant.  The question is whether the injury, when compared with other cases, is more than significant or marked, and at least very considerable.  The Court considered that the plaintiff’s injuries were marked, but not very considerable.

Humphries v Poljak [1992] 2 VR 129, followed.

Judgment

The Court’s judgment is available here.

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

DPP v Ryan (2007) H&FLR 2014-49

Director of Public Prosecutions v Stephen Newton Ryan (2007) H&FLR 2014-49

County Court of Victoria (Australia)

c. 20 March 2007

Coram: Judge McInerney

Appearing for the Prosecution: Carolyn Burnside (instructed by the Office of Public Prosecutions)
Appearing for the Defendant: Brian Bourke (instructors not known)

Catchwords: Australia – Victoria – soccer – altercation between spectators -serious injury – assault – sentencing considerations

Facts: On 29 June 2003 the accused attended an under-11s soccer match at Caloola Reserve, Oakleigh, in which his son was playing. It was alleged that he had been telling players from his son’s team to kick and punch a player on the opposing team after a penalty shot was awarded. The victim – the father of one of the players on the opposing team – remonstrated with him. In the ensuing altercation the victim grabbed the accused’s umbrella and suffered a hand injury when it was yanked away. When the victim turned to walk away, the accused struck him from behind with the umbrella, causing a spoke to become lodged in his back.

The accused was charged with intentionally or recklessly causing serious injury*. He pleaded not guilty at a committal hearing in the Melbourne Magistrates Court and was committed to stand trial in the County Court: McLean v Ryan (2006), The Age, 15 September 2006. At trial he pleaded guilty to assault**.

Held: The Court accepted that the offence had been committed in the heat of the moment and that the accused had allowed himself to be overcome by circumstances. However, His Honour also considered that it was becoming too common for parents at soccer matches to lose their self-control, and that neither the accused nor victim had brought credit to themselves and had set a bad example to the children present.

A conviction was recorded against the accused and a fine of $3,000.00 imposed.

Judgment

No written judgment has been made available. The report has been prepared based on newspaper accounts in The Age of 1 July 2003  and 15 September 2006 and the Herald Sun of 14 September 2006 and 21 March 2007.

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* Crimes Act 1958 (Vic.), §16 and §17.
** Summary Offences Act 1966 (Vic.), §23

Leddin v R (2014) H&FLR 2014-42

Eamonn Francis Leddin v The Queen (2014) H&FLR 2014-42

Victorian Court of Appeal

22 July 2014

Coram: Weinberg, Whelan and Beach JJA

Appearing for the Appellant: Mr J McLoughlin (instructed by Victoria Legal Aid)
Appearing for the Respondent: Ms F L Dalziel (instructed by the Office of Public Prosecutions)

Catchwords: Victoria – cyclist – death – culpable driving – daydreaming – sentencing – manifestly excessive

Facts: On 7 April 2011 at about 11:00am the applicant (then aged 19), driving a car, struck a cyclist. The road on which both were travelling was straight with a 100kph (≈ 60mph) speed limit. The weather was fine and visibility good. Roughly half a kilometer before the accident scene was a sign warning of the presence of cyclists. The deceased was an experienced 47 year old cyclist wearing a high-visibility top.  The defendant’s evidence was that while he had seen the sign warning of cyclists and also the cyclist herself, after doing so he had lost concentration and begun to daydream. There was no evidence that he was drugged or intoxicated, distracted by a mobile phone or speeding. There was no clear evidence that he had fallen asleep or been over-tired.

Significant delay by the prosecution resulted in the defendant not being charged with culpable driving causing death (Crimes Act 1958, §318) until January 2013. On 4 December 2013 he pleaded guilty to this charge and was sentenced to 4 years and 3 months imprisonment, to serve a minimum of 2 years and 3 months: Director of Public Prosecutions v Leddin (County Court of Victoria, Judge Taft, 19 December 2013, unreported). The defendant appealed on the basis that the sentence and non-parole period were manifestly excessive

Held: Dismissing the appeal, that –

1. Serious driving offences tend to be committed by young drivers. Because of this, an offender’s youth must be given less weight than might otherwise be the case in considering sentence in these matters

Director of Public Prosecutions v Neethling (2009) 22 VR 466, approved.

2. The maximum penalty for the charged offence is 20 years’ imprisonment. A case would need to be ‘truly exceptional’ for a sentence of 4 years and 3 months to be manifestly excessive. The delay in the prosecution and the absence of speeding, intoxication and disobeying traffic signals did potentially render the matter unusual. On the other hand, there was genuine culpability in the defendant’s failure to avoid a collision with a cyclist despite having seen both her and a warning sign concerning cyclists generally.

Director of Public Prosecutions v Neethling (2009) 22 VR 466; Director of Public Prosecutions v Hill (2012) 223 A Crim R 285; and R v Sherpa (2001) 34 MVR 345, considered.

Judgment

The Court’s judgment is available here.

Pallante v Stadiums Pty Ltd (1975) H&FLR 2014-12

Pallante v Stadiums Pty Ltd and Ors (1975) H&FLR 2014-12 †

Supreme Court of Victoria

9 April 1975

Coram: McInerney J

Appearing for the Plaintiff: Mr Waldron QC and Dr C Pannam (instructed by KD Opat)
Appearing for the First Defendant: Mr O’Bryan QC and Mr J Larkins (instructed by John Cain and Peter Lamers)
Appearing for the Second Defendant: Mr Hedigan QC and Mr J Sher (instructed by Mercer, Lewenberg and Pryles)
Appearing for the Third Defendant: Mr F Dyett (instructed by Seton, Williams and Smith)
Appearing for the Fourth Defendant: No appearance

Catchwords: Victoria – boxing – unlawful – injury – referee – trainer – promoter – negligence – mismatch – abuse of process – amendment of pleadings

Facts:  The plaintiff, Martin Pallante* was a semi-professional boxer** who suffered eye injuries on 23 April 1970 in a boxing match which was conducted by Stadiums Pty Ltd, which had engaged the second defendant (Norman Foster) as referee and matchmaker.  He sought compensation from Stadiums and Foster, and also from his trainer (Sydney Thompson) and the fight promoter, Franco Marsili. It was alleged that, among other things, the defendants’ negligence resulted in the bout being a significant mismatch against a stronger boxer, Rocky Mattioli***.

The initial hearing of the case was terminated by the trial judge (Kaye J) on the grounds that a contemporary media report had introduced a risk of unfairness to the parties: Pallante v Stadiums Pty Ltd and Ors (1974), The Age, 10 December 1974, at 5.

Prior to the new trial commencing, the defendants applied to dismiss the proceeding on the basis that it was an abuse of process. On behalf of the first defendant it was argued that the plaintiff was engaged in an unlawful prize fight and could claim no damages for injuries so sustained. At the same time the plaintiff applied to amend his statement of claim.

Held: Dismissing the defendants’ application and allowing the plaintiff’s application –

1. Fighting between two persons who are not hostile to each other, and who do so in circumstances not likely to produce meaningful injuries or to incite them to hostility, is not an assault nor a breach of the peace. However, it may become an assault if a spirit of hostility develops and some or all parties develop the intention of inflicting substantial physical harm. The question is not determined by whether or not the fight is in public or private, for money or while using boxing gloves.

R v Coney (1882) 8 QBD 534, considered.

2. Physical violence is not an assault inflicted during a sporting contest which the participants have entered upon with the understanding that each accepts the risk of violence normally expected as part of the sport.

R v Moore (1898) 14 TLR 229 and R v Bradshaw (1878) 14 Cox CC 83, followed.

3. Boxing is not unlawful at common law provided it is conducted predominantly as an exercise in boxing skill and physical condition, consistent with rules which aim to keep injuries within reasonable limits and to reduce as far as possible the risk of serious injuries and to ensure that victory goes to the person with greater boxing skill. Whether a fight is unlawful or not must be decided on the evidence and is a jury question.

4. As a general rule, any amendments to a party’s pleadings should be allowed which will permit the real questions in issue to be litigated.

Judgment

The Court’s judgment is available here.

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† The classic report of this case is that at [1976] VR 331. Because the Court has recently made a copy of McInerney J’s original judgment available, and because more can now be reported about the parties and the case, the present headnote has been prepared.

* Also known as Bernie Martin.

** A contemporary report gives Martin Pallante’s occupation as ‘carpet layer’, although he is also said to have fought five professional bouts before the fight the subject of the claim: ‘Bout was a massacre, says boxer’, The Age (Melbourne), 6 December 1974, at 5.

*** A comparison of Pallante’s boxing record with Mattioli’s suggests the latter was by far the stronger fighter.

Kingswood Golf Club Ltd v Smith and Sutton (2005) H&FLR 2014-6

Kingswood Golf Club Ltd v Smith and Sutton (2005) H&FLR 2014-6

Court of Appeal of Victoria

16 September 2005

Coram: Maxwell P, Callaway and Ashley JJA

Appearing for the Appellant: Mr DFR Beach SC and Mr Chris Winneke (instructed by Cornwall Stodart)

Appearing for the First Respondent: No appearance (1)

Appearing for the Second Respondent: Mr JP Brett (instructed by Phillips Fox, now part of DLA Piper)

Catchwords: Victoria – golf – golf cart – concealed hazard – loss of control – negligence – apportionment

Facts: The first and second respondents (respectively Smith and Sutton) were playing golf on 12 February 2002 at a course operated by the appellant (Club). While moving to the third tee, the front left tyre of a golf cart driven by Sutton went into a concealed depression in the ground which contained two solenoid boxes. In order to regain control of the cart Sutton steered hard to the right and accelerated. The cart veered to the right and collided with Smith, who was on foot. Smith suffered extensive injuries.

At first instance the matter was heard without a jury in the County Court of Victoria by Judge Wilmoth (2). Her Honour found that the depression was concealed by grass but could have been made obvious by clipping the grass. Her Honour also found that after exiting the depression Sutton had had sufficient time to brake but failed to do so. She found that both defendants had been negligent and apportioned liability 60% to the Club and 40% to Sutton. Damages were assessed at $292,216.90.

The Club appealed in relation to liability and apportionment.

Held: dismissing the appeal –

Per curiam, that it was open on the evidence for the judge to have found that the Club breached its duty of care to the plaintiff by failing to make the depression perceptible. While Sutton could have made better choices as to what to do after the wheel entered the depression, the chain of causation from the Club’s negligence had not been broken.

By Ashley JA (Maxwell P agreeing), that apportionment of fault is a question of proportion, balance, emphasis and the weighing of different considerations. The apportionment arrived at by the trial judge was within the available range of decisions.

By Callaway JA (dissenting), that Sutton’s negligence was greater than that of the Club and that liability should be apportioned 75% against her and 25% against the club.

Podrebersek v Australian Iron & Steel Pty Ltd, 59 ALJR 492 (Austl., 1985), followed.

Judgment

The Court of Appeal’s judgment is available here.

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(1) Because liability and quantum were not in issue on appeal as between the plaintiff and at least one defendant, her interests were not affected and so no appearance was required. At trial she was represented by Mr Richard Kendall QC and Mr David O’Callaghan (instructed by Nicholas O’Bryan of Galbally & O’Bryan)

(2) Noreen Smith v Kingswood Golf Club Ltd and Joan Sutton [2004] VCC 9