Health & Fitness Law Reports

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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.

Marks and Johnson v Scottsdale Ins. Co. (2015) H&FLR 2015-35

Danny Ray Marks and Timothy B Johnson v Scottsdale Insurance Company (2015) H&FLR 2015-35

United States Court of Appeals (Fourth Circuit)

29 June 2015

Coram: Hamilton, Sen. Cir. J.; Gregory and Harris, Cir. JJ.

Appearing for the Appellant (Marks): John Janney Rasmussen (of Insurance Recovery Law Group).
No appearance for the Plaintiff (Johnson).
Appearing for the Appellee: Mr John Becker Mumford (of Hancock, Daniel, Johnson & Nagle)

Catchwords: Virginia – insurance law – coverage – hunting – hunt club – members – vicarious liability.

Facts: Mr Johnson was a member of the Northumberland Hunt Club.  On 3 January 2013 he was hunting on land leased by the club which was adjacent to a roadway.  He fired a shot which struck and injured Mr Marks, a passing motorist.

Marks commenced proceedings in negligence against Johnson and the Club in a Virginia court.  He issued separate proceedings against the Scottsdale, seeking a declaration that that company was obliged to defendant and indemnify Johnson. The relevant insurance company covered the Club and “any of [its] members, but only with respect to their liability for [the Club’s] activities or activities they perform on [the Club’s] behalf”.

Scottsdale successfully aplied to transfer the matter to a federal court, which found that Scottsdale was not obliged to defend or indemnify Johnson: Marks and Johnson v Scottsdale Ins. Co. (US Dist. Ct for E.D. Va, Novak Mag.J., 30 July 2014, unreported).  Mr Marks appealed.

Held: Dismissing the appeal,that –

1. Virginia law requires the contract’s words to be given their “ordinary and customary meaning”.

Salzi v Va Farm Bureau Mut. Ins. Co, 556 SE.2d 758 (Va. 2002), followed.

2. Coverage of liability for “the Club’s activities” restricts coverage to the member’s vicarious liability for activities the club as an entity undertakes (for example, entering contracts or buying or selling property).  Members are however not covered with respect to their actions “during in connection with the club’s activities”.  In this case, no facts were alleged against Johnson which (if proved)would render Scottsdale liable to defend or indemnify him.

Lenox v Scottsdale Ins. Co. (US Dist Ct for Dist of NJ, Chesler Mag.J., 5 May 2005, unreported); CACI International Inc v St Paul Fire and Marine Ins. Co., 566 F.3d 150 (4th Cir., 2009), followed.

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.

Pennsylvania v Gosselin (2004) H&FLR 2015-33

Commonwealth of Pennsylvania v Barbara Gosselin (2004) H&FLR 2015-33

Superior Court of Pennsylvania

5 November 2004

Coram: Hudock and Klein JJ; McEwen PJE

Appearing for the Prosecution: No appearance
Appearing for the Defendant: Dick Berger

Catchwords: Pennsylvania – pets – squirrel – wildlife – marking

Facts: The defendant was a resident of South Carolina in the early 1990s.  While a resident there she took into her care an injured squirrel which became the family pet.  In 1994 the defendant, her husband and the squirrel relocated to Pennsylvania, where the squirrel was housed in a room-sized enclosure.  In 2002 an officer of the Pennsylvania Game Commission became aware of this and requested that the squirrel be released into his charge on the basis that it was unlawful to keep it in this manner.  The defendant declined to release the squirrel and was charged with unlawfully possessing wildlife.

Section 2307 of the Pennsylvania Game and Wildlife Code (34 Pa CSA §2307) relevantly provides that –

(a) It is unlawful for any person to … possess … any … wildlife contrary to the provisions of this title.

(c) Nothing in this title shall prohibit the possession … of … wild animals lawfully taken outside of [Pennsylvania] which are tagged and marked in accordance with the laws of the state or nation where the … wild animals were taken. It is unlawful to … possess … wild animals from another state or nation which have been unlawfully taken, killed or exported.

It was common ground that the squirrel was a wild animal and that South Carolina law allowed the taking and domestication of squirrels without requiring them to be tagged or marked.

The defendant was convicted of the charge and fined $100.00: Pennsylvania v Gosselin, Morning Call, 14 May 2003 (Orwigsburg Dist. Ct., Feb. 2003).  She appealed to the Court of Common Pleas which upheld the conviction: Pennsylvania v Gosselin, Morning Call, 28 November 2003 (Schuykill Co. Ct. Comm. Pleas, Nov. 2003).  She further appealed to the Superior Court.

Held: Allowing the appeal and dismissing the charge, that because South Carolina law did not require the squirrel to be tagged or marked, the absence of tagging or marking met the requirements of §2307(c).  Because it was agreed that the squirrel was lawfully taken in South Carolina, the exception in paragraph (c) was made out.

Judgment

The Court’s judgment is available here.

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

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

Coroners Court of Victoria

3 March 2015

Coram: Coroner White

No appearances recorded

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

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

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

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

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

Judgment

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

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

Assoc. Les Droits des Non-Fumeurs v Sté Indiana Richelieu Drouot (2013) H&FLR 2015-31

Association Les Droits des Non-Fumeurs v Société Indiana Richelieu Drouot (2013) H&FLR 2015-31

Court of Cassation (France)

13 June 2013

Coram: Bizot P, Kriegk C and Maitre AG

Appearing for the Plaintiff: SCP Yves et Blaise Capron.
Appearing for the Defendant: SCP Celice, Blancpain & Soltner.

Catchwords: France – tobacco – non smoking area – public access – enclosed

Facts: The defendant operated “Café Indiana” at 18 Montmartre Boulevard, Paris.  The terrace of the cafe was found to be closed on its three main sides and to be only partly ventilated beneath its roof.

Article L.3511-7 of the French Code of Public Health forbids smoking in places given over to collective use.  Pursuant to Article 8 of the World Health Organization’s Framework Convention for Tobacco Control, such places include enclosed and covered areas which are workplaces or which are intended to be accessed by the public.

The plaintiff brought proceedings against the defendant alleging a breach of Article L.3511-7 and claimed damages and an injunction.  The proceeding was dismissed by the trial court (Assoc. Les Droits des Non-Fumeurs v Sté Indiana Richelieu Drouot, Paris Tribunal de Grand Instance*, 14 September 2010, unreported).  The plaintiff’s appeal was dismissed (Assoc. Les Droits des Non-Fumeurs v Sté Indiana Richelieu Drouot, Paris Court of Appeal, 11 May 2012, unreported).  The plaintiff further appealed to the Court of Cassation.

Held: Allowing the appeal and remitting the matter to the Versailles Court of Appeal, that the cafe’s provision of only partial ventilation under its roof while being closed on its three main sides was inadequate to respond to the law’s requirements.

Judgment

The Court’s judgment is available here.

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* Roughly, the Paris Superior Court.

Riva v Pepsico Inc (2015) H&FLR 2015-30

Paul Riva and Danielle Ardagna v Pepsico Inc. (2015) H&FLR 2015-30

United States District Court (Northern District of California)

4 March 2015

Coram: Chen J

Appearing for the Plaintiffs: Roy Arie Katriel (of The Katriel Law Firm)
Appearing for the Defendant: Christopher Chorba (of Gibson, Dunn & Crutcher LLP)

Catchwords: California – product liability – soft drink – carcinogen – dosage – pleadings

Facts: The plaintiffs  consumed “Diet Pepsi” and “Pepsi One” (drinks).  Mr Riva asserted that he consumed Pepsi One two to three times a week; Ms Ardagna that she drank nearly 30 cans of Diet Pepsi a week.  They alleged that each can of these drinks contained 43.5 and 30.5 micrograms respectively of 4-methylimidazole (4-MeI).  A report from the National Toxicology Program found that high doses of 4-MeI resulted in increased levels of bronchioloalveolar cancer in mice.

The plaintiffs brought proceedings against Pepsico alleging that its products had caused them to experience an increased risk of cancer.  They alleged negligence and also strict liability based on defective design and on failure to warn.  They sought the establishment of a fund from which people who consumed the drinks between 2010 and 2013 could be paid for the costs of medical monitoring of potential bronchioloalveolar cancer. The defendant sought to dismiss the proceedings for failure to state a claim.

Held: Dismissing the plaintiffs’ claim, that –

1. The plaintiffs had failed to establish constitutional standing to sue.  To establish standing it was necessary to show that (a) there was an actual (or imminent), concrete and particularizable invasion of a legally protected interest; (b) that the injury was fairly traceable to the defendant’s actions; and (c) that it was likely that the injury would be redressed by a favourable decision. While an increased risk of injury can establish the necessary invasion of an interest, the increased risk must be credible and not simply a matter of conjecture.  In this case the plaintiffs had not shown that their increased cancer risk was credible and substantial, but merely speculative.

Central Delta Water Agency v United States, 306 F.3d 938 (9th Cir. 2002), followed.

2. In a case of toxic exposure, the cost of periodic future medical examinations intended to encourage early detection and treatment of the disease caused by the exposure (“medical monitoring”) can be claimed.  The need for future monitoring must be a reasonably certain consequence of the exposure.  In considering whether the monitoring is reasonable and necessary, a court must consider five factors –

  • the significance and extent of the exposure suffered by the plaintiff;
  • the chemicals’ toxicity;
  • the relative increase in the plaintiff’s risk of developing the disease due to the exposure, compared with the risk the plaintiff would have had without exposure or the risk of the public at large;
  • the seriousness of the potential disease; and
  • the medical value of early detection and diagnosis.

In the present case, the plaintiffs had not sufficiently alleged a causal connection between drinks and an increased risk of developing the cancer given the significance and extent of their exposure, nor sufficiently pleaded their injury or the toxicity of 4-MeI, nor shown the necessary relative increase in risk.

Potter v Firestone Tire & Rubber Co, 6 Cal.4th 965 (1993), followed.

Judgment

The Court’s judgment is available here.

State v Saad (2015) H&FLR 2015-29

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

Wayne County Circuit Court (Michigan)

13 March 2015

Coram: Judge Cameron

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

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

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

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

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

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

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

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

Judgment

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

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

Poulos v Samoa Rugby Union Inc. (2011) H&FLR 2015-28

Peter Poulos v Samoa Rugby Union Incorporated (2011) H&FLR 2015-28

Supreme Court of Samoa

8 August 2011

Coram: Slicer J

Appearing for the Plaintiff: L Tamati and A Su’a (instructors not identified)
Appearing for the Defendant: S Leung Wai (instructors not identified)

Catchwords: Samoa – rugby – professional athlete – selection team – injury – assurance – ‘looked after’.

Facts: The plaintiff was a professional rugby player. On 5 April 2006 he took part in a practice match between a local club and a side made up of players (including himself) being considered for selection in the Samoan national side.  During a maul he suffered a neck injury as a result of fair play.  The injury was expected to end his playing career.

The Court accepted that the plaintiff entered upon the selection process having been assured that the defendant would “look after him” in relation to medical treatment and associated costs (but not future loss of income) in the event of injury.  In the event he was provided with little or no assistance by the defendant and brought proceedings against it on the basis that it had tortiously or in breach of contract failed to honour its assurance, including by failing to take out suitable insurance.

Held: Upholding the claim in part, that –

1. It was indisputable that the defendant owed the plaintiff a duty of care while he was taking part in the selection process.  The real issue was the standard of care to be observed, which would be determined by what was reasonable in the circumstances as regards taking out insurance.  In this case, the defendant was entitled to rely on the standard set by the International Rugby Board which did not require insurance to be taken out over players in the selection process.

Bolton v Stone [1951] AC 850; Wyong Shire Council v Shirt (1980) 146 CLR 552; and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, followed.

2. It was not appropriate for the courts to imply a requirement to take out insurance into a contract involving a sports injury

Reid v Rush and Tompkins Group Plc [1990] 1 WLR 212, followed.

3. The general agreement that the defendant would look after the plaintiff was binding on it, despite the defendant not being obliged to take out insurance to this effect.  The defendant had breached this commitment by doing little or nothing to assist the plaintiff following his injury.  In the circumstances compensation was payable and damages were assessed.

Judgment

The Court’s judgment is available here.

Coppinger v Gray (2015) H&FLR 2015-27

Brendan Coppinger and Nessa Coppinger v Edwin Gray and Mozella Johnson (2015) H&FLR 2015-27

Superior Court of the District of Columbia

2 March 2015

Coram: Beck J

Appearing for the Plaintiffs: Eric Klein (of Beveridge & Diamond)
Appearing for the Defendants: Self-represented

Catchwords: District of Columbia – neighbour – smoking – tobacco – negligence – nuisance – trespass – injunction

Facts: The first defendant (Gray) lived in a Washington DC house owned by the second defendant (Johnson).  The house had been purchased by their mother in 1964.  In mid-2014 the plaintiffs and their infant daughter moved into the adjoining house.  The first defendant conceded that from time to time he would smoke tobacco and marijuana and burn incense.  The plaintiffs alleged that this caused their house to smell of (or become filled by) smoke, causing loss of amenity and a risk of personal harm.

There was significant evidence that there were cracks in the wall shared by the houses, that the defendants’ chimney was decaying, and that these factors were causing smoke to enter the plaintiffs’ house. The defendants alleged that shoddy renovations to the plaintiffs’ property had left the wall inadequately sealed.

Discussions between the parties did not resolve the matter and the plaintiffs issued proceedings in negligence, nuisance and trespass and claiming damages.  An interlocutory injunction on the defendant smoking in the premises was sought by the plaintiffs.

Held: Granting the injunction, that the defendant be forbidden from smoking any substance whatsoever inside his home.  Her Honour further ordered him to refuse to allow any person to reenter the house who smoked in breach of the order.  The order was to remain in force until further order or until the matter was finally heard.

Judgment

No written reasons are available.  This report has been prepared based on reports in the Washington Post of 10 March 2015 (here and here), by radio station WTOP and television station WJLA-TV.

Comment: This matter invites comparison with the German case of Proprietor v Adolfs (2014) H&FLR 2014-36. One might infer that the law will be particularly receptive to claims of loss of amenity due to smoking, particularly in light of other cases which suggest tobacco use is coming to be considered a social burden (for example, Police v Dumughn (2002) H&FLR 2015-23 and State v Native Wholesale Supply (2014) H&FLR 2014-32).