Category Archives: tort law

Defamation and anonymous blogging

Has anyone else ever put comments up in online forums, or in response to newspaper stories or blog posts? If you’re reading this post, I suspect that you might have been tempted to do so. You know the drill then. You are required to enter your name in a box headed “Name”, and then you are required to enter an e-mail address. Usually, there is a disclaimer beside the box, stating “will not be published” or “for verification purposes only” or something of the sort. Perhaps you have used a psuedonym, feeling safe in the knowledge that no one will know who you are. Given a recent case in the UK, perhaps you need to mind what you say.

In Sheffield Wednesday Football Club Inc v Hargreaves [2007] EWHC 2375 (QB), a football club, Sheffield Wednesday, and members of its board of directors sued the owner and operator of a fan website, www.owlstalk.co.uk, for defamation. The plaintiffs sought to require the website to disclose the e-mail addresses of contributors to a fan chat forum whose contributions were said to be defamatory.

At the outset, taking off my lawyer’s wig and adopting a practical point of view, it seems to me that if one’s fans are already offside, then suing those who are critical of your management isn’t going to increase your popularity with the fan base… Just a thought.

In any case, the comments were made by some 11 anonymous contributors, all of whom were fans of Sheffield Wednesday. All of the comments were scathing about the way in which the plaintiff chairmen/directors and others had managed the club.

Richard Parkes QC said at the outset at [9]:

…in a case where the proposed order will result in the identification of website users who expected their identities to be kept hidden, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court.

Ultimately, his Honour decided that the defendant should be required to divulge the details of only those contributors whose comments were of the most serious nature (at [17] – [18]):

It seems to me that some of the postings…border on the trivial, and I do not think that it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory or little more than abusive or likely to be understood as jokes. That, it seems to me, would be disproportionate and unjustifiably intrusive. …

The postings which I regard as more serious are those which may reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour on the part of the Claimants. In the case of those postings, the Claimants’ entitlement to take action to protect their right to reputation outweighs, in my judgment, the right of the authors to maintain their anonymity and their right to express themselves freely, and I take into account in this context the restrictions on the use of defamatory language which the rules of the Defendant’s bulletin board impose, restrictions which in the case of these postings appear to have been breached. I take into account also that the Defendant does not appear to have had any policy of confidentiality for the benefit of his users.

Having read the exerpts of the comments in the judgment itself, the comments in fact seemed pretty tame compared to some things I’ve read in the blogosphere. I could imagine the comments being made by disgruntled fans in the pub after the match, and indeed, I think this is very much the way in which the fans themselves saw it; except that they had put the comments in writing on a public forum, which gives the comments a very different status.

People often treat e-mail and online forum comments as if they are “verbal” rather than “written”. But what could just be a disgruntled whinge may come across as something altogether more serious when put in writing. I fell into this trap once myself with e-mail, and vowed never again to communicate problems via e-mail, as they lack “tone”, and may come over so much more harshly as a result. 

Furthermore, it’s easy to be nasty if you are just typing a comment and don’t have to look someone in the eye when you make it. I once dealt with a client who was pleasant if you saw him in person, but typed vicious and unreasonable e-mails asking you to crush the other side and give no mercy, even if the dispute was partly of his own making. My tactic was always to ring him back about the e-mail and get him to soften the instructions thereby. I’ve never found a “take-no-prisoners” approach to be effective. Softly, softly, catchee monkey…and go in for the killer punch if necessary at the end.

It’s even easier to be vicious if you are anonymous, because if you want to make up a sufficiently obscure psuedonym, even your own mother might not realise you made the comment, so you don’t have to take responsibility for it. Although I write under a psuedonym on this very blog, I always write as though I was writing under my own name. I’m sure it’s easy enough to work out my real identity if anyone really wanted to do so.

The lesson for us all is to be very careful with what we say. Would we be embarrassed to own up to it? Is what we are saying truthful? It seems that it was important in this case that (a) there was no confidentiality policy in place to protect the details of contributors and (b) there was a policy that abusive/defamatory comments should not be made. At the very least, those who run internet forums and the like will have to revise their confidentiality policies if they wish to protect the details of contributors.

Any comments, of course, will be treated STRICTLY CONFIDENTIALLY (just for the record, in case any judges out there are reading this blog).

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Filed under blogging, blogs, courts, defamation, e-mail, England, freedom of information, freedom of speech, Internet, law, media, privacy, soccer, technology, tort law

The sad consequences of losing a pair of pants

You may recall that Roy Pearson, a US administrative law judge, filed a multi-million dollar claim against the Chungs for losing a pair of his pants (earlier explanations here and here). He lost resoundingly, and then appealed. Pearson’s contract as a judge was unlikely to be renewed as a result of his conduct and the adverse publicity surrounding this litigation.
Now the Chungs have now been forced to sell up their shop.

Pretty sad outcome for everyone. And all over one pair of pants! I really hope Pearson sees sense and abandons his appeal, but I have a horrible feeling that he’ll pursue this claim right up to the US Supreme Court.

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One is fun, two is double trouble

A mother of IVF twins is suing the doctor who runs the IVF clinic because she says that she only wanted one child implanted, not two, and she has now suffered emotional stress, financial stress and problems in her relationship with her lesbian partner. The mothers are seeking $398,000 to cover the costs of raising one of the girls.

Such cases are known as “wrongful birth” cases. The case of Cattanach v Melchior [2003] HCA 38 set the precedent for these kind of cases. In Cattanach, a couple sued a doctor over a tubal ligation. The wife had told the doctor that she had had her right fallopian tube removed as a teenager, and accordingly, he only clipped her left fallopian tube. This was incorrect. Four years later, she discovered she was pregnant, and gave birth to a son. The parents successfully sued for damages compensation for (1) losses suffered as a result of the pregnancy and birth (2) losses suffered by the husband for a “loss of consortium” and (3) damages representing the costs of raising the child. They were successful (to varying degrees) in all claims. The High Court confirmed that the plaintiffs were entitled to damages for the third head of damages.

By contrast, the English House of Lords rejected a claim of wrongful birth in almost identical circumstances to Cattanach in an earlier case of Macfarlane & Anor v Tayside Health Board (Scotland) [1999] UKHL 50. Personally, I find the words of Lord Millett in that case to be persuasive:

In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forego the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.

This does not answer the question whether the benefits should be taken into account and the claim dismissed or left out of account and full recovery allowed. But the answer is to be found in the fact that the advantages and disadvantages of parenthood are inextricably bound together. This is part of the human condition. Nature herself does not permit parents to enjoy the advantages and dispense with the disadvantages.

The High Court’s approach in Cattanach is to be contrasted with its approach in the wrongful life cases, whereby parents alleged that they would have aborted a child had they known of the child’s disability or potential to suffer a disability (see previous blog post on topic). The High Court found that the plaintiffs were not entitled to damages from the doctors in those cases.

My brothers-in-law are identical twins. I understand that it was a struggle for my mother-in-law when they arrived, particularly as she already had one small child at the time. I must admit that when I had my first scan when I was pregnant, I felt a little nervous. What if I was pregnant with two children? It would be both exciting and scary. It would mean I would have to totally reassess our finances and our way of living. But would I change it? I don’t think so.

As stated in this article in The Age by Carol Nader, there is a tension between the modern day view that parenthood is a choice, and the older view that a child is a blessing. In the past, women could not control their fertility easily. There was little choice as to whether to have children or not. Having children was seen to be a woman’s only role in life. Now we can control our fertility, and intervene in ways previously thought unimaginable to determine whether a foetus is disabled or to determine what gender it is. This gives us more choice and flexibility. It is undeniable that part of the social revolution whereby women can enter the workforce has arisen because women can now control their fertility. I am profoundly glad that I can study and work, and control when I have my next child. I’m not just tied to the kitchen sink, barefoot and pregnant. On the down side, some women have found that they have left it too late to have children, or have experienced severe difficulties as a result. There’s pros and cons to everything.

The result is that we now see parenthood as a choice rather than something that inevitably occurs. And we may feel angry if we can’t control our choice to become a parent in the way that the medical profession told us that we could.

I do not feel comfortable with the case of the reluctant mothers above. I understand that they did not want two children at once, and that they were distressed by the fact that there was an unexpected addition. As I have explained above, I think I would panic if I found out I was having twins. But I can’t help agreeing with Lord Millett. A happy, healthy child is a blessing. In this day and age, a woman is lucky to be able to conceive via IVF. And I also worry about the impact that this case may have on the twins when they are older. They will know that their mothers only wanted one of them, and they may feel rejected. I think that the mothers should not succeed. Sometimes life doesn’t turn out the way we planned where children are concerned. But my own daughter is such a blessing that I can’t quite fathom the distress of these mothers. I think of friends who would love to have children (in both heterosexual and same sex relationships). Surely two isn’t just double trouble, it’s also a double blessing?

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Filed under children, courts, feminism, law, morality, motherhood, tort law

Pants man just can’t stop

I think I predicted it in one of my previous posts on this issue (here, here and here) or at least in the comments thread. The $64M pants man has appealed the decision rejecting his exorbitant claim regarding a pair of lost suit pants. Oh dear…so predictable. Vexatious litigant in the making, methinks. Me also thinks that he won’t get his contract renewed…

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Stolen Generation Success

I was interested to read the recent case of Trevorrow v State of South Australia (No. 5) (2007) SASC 285. Put briefly, the plaintiff was taken from his parents as an infant, and consequently had a troubled childhood and adolescence. He succeeded in his efforts to sue the South Australian government. I think that this was a just result.

It’s a sad story. The plaintiff was cared for by his mother and his father. His mother separated from his father, and left three of the children with the father over Christmas. When he was a little over a year old, the plaintiff contracted gastroenteritis and his father did not have transport by which to get him to hospital. The police could not help. So the father got the local garage proprietors to take the boy to hospital.  The plaintiff was cured, but instead of being returned to either parent, he was then fostered out with a non-indigenous family. Neither parent knew what had happened to the boy. The mother tried to get the boy returned to her, but was told that there was nothing she could do. Meanwhile, the plaintiff was fostered out to a non-indigenous household and brought up as a child of the house. Once the plaintiff found out that he was not related to his family, he began to act up and steal things. He was returned to his mother when he was 10 years old, but found it extremely difficult as he did not know his family and did not know Ngarrindjerri language or customs. He then got into trouble with the law, and became an alcoholic. In comparison, his brothers and sisters who were not taken from their parents seem to have overcome childhood difficulties and poverty. One brother of the plaintiff is a respected Ngarrindjerri elder.

The Court was prepared to extend the limitation of actions period in the circumstances.  Gray J found that the plaintiff was not removed from his parents in accordance with prescribed statutory processes. There was a foreseeable risk of harm to the plaintiff. Accordingly, the South Australian government was liable for a number of claims:

  • tort of misfeasance in the public office;
  • tort of false imprisonment;
  • tort of negligence
  • possible breach of fiduciary duty (for which damages would be the same as for common law actions;

The plaintiff was awarded $450,000 damages for the breaches of the duties above, and $75,000 in exemplary damages.

It seems to me that this case is a fair one. As I’ve outlined in a past post, I don’t take a hard and fast attitude towards the Stolen Generation. There are at least two conflicting motives at play. I’m sure that some probably did have the best interests of children at heart. But there was also an explicit desire to “Westernise” indigenous children and a racist aim of “wiping out” indigenous culture. Both motives were often combined.

As I have also explained, I have known indigenous people who were taken from their parents or had relatives who were taken from their parents. Their stories lead me to believe that great pain has been visited on these people, but that in some cases there were valid reasons for them being taken from their parents. The scenarios are complicated and not well suited to the adversarial arena of the court room.  In one instance, a student’s mother was taken from her tribe because the majority of the tribe wanted to kill the baby (a “half-caste” child who was the product of a rape). The mother of the child did not want her to die, and so she relinquished the child to authorities after it transpired that she could not protect the girl. Another friend was taken from her mother because her mother was physically abusive. Her mother lacked parenting skills, in part presumably because she herself had been taken from her parents. However, unfortunately, my friend was also abused in the foster homes in which she was subsequently placed. She has suffered lasting psychological damage.

I agree with Julian Burnside QC that there can be no blanket response to this issue: it all depends on the facts of each case. For example, in the Cubillo case, the plaintiffs failed in large part because their factual allegations could not be made out.  In comparison, in this case, the plaintiff succeeded because he could point to the fact that his removal was not authorised, and he could also establish that his psychiatric problems arose because of his placement in a foster home. I presume that it was highly relevant that his siblings seem not to have had these kind of problems, even though they also had a difficult upbringing.

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Filed under Australia, courts, depression, history, indigenous issues, law, mental illness, tort law

“Team building” exercises

I enjoy working in a team with intelligent and motivated people where communication is clear and there is respect between the members of the team. But I think I may have mentioned before on this blog that, in some respects, I’m not a team player (at least insofar as the concept is conceived of by HR departments). I hate work retreats. My attitude has always been: I spend all week with these people, and while I like most of ’em well enough, I can’t wait to spend the weekend with my family. But what I really hate are “team building” exercises.

This dislike has gone back many years, but I think it was exacerbated by a particular event. Once, longer away now than I care to remember, I was a little articled clerk, full of enthusiasm and naivety. On our first or second week, our group of articled clerks was sent on some kind of “leadership” or “team building” exercise. I don’t know what exactly the point of the exercise was, but the end result was appalling. By the end of the week, we had gone from being a friendly bunch to a group with massive schisms, full of suspicion and dislike. It certainly didn’t build a “team” mentality; in fact the very opposite. Luckily, I was a bit older, and I’d already been working full-time for over a year before then, so I didn’t take the whole thing very seriously. I have always just wanted to do my job well and go home.

One can get help from some exercises – for example, I found it helpful to do the Meyers-Briggs test, which disclosed that I was an extrovert – and almost everyone else in my family was an introvert. This helped me understand why everyone had been saying, “Why do you talk so much all the time?” since I was knee-high to a grasshopper. I feel the need to talk to work stuff out, whereas almost everyone else in my family feels the need to go away and mull over things to work stuff out. I’ve even married an introvert. Fortunately, my daughter is an extrovert from what I can see so far, so I have a fellow extrovert with whom I can talk until the cows come home. At the moment the main things she says to me are “Cat! Meow! Jump!” (her new game is pretending to be a cat, and I have made her a “tail” out of an old stocking and some newspaper). But I’m sure we’ll have more to talk about soon.

Team building exercises worry me where they are supposed to help you resolve “issues” with colleagues. I’m happy to talk with friends whom I trust about my personal problems and issues, but work colleagues? If I ever raised problems I had with a colleague, I’d prefer to keep that very, very private, strictly professional, and definitely one-on-one. I think it can be very confronting to talk about personal issues in a group of colleagues. I had a friend who did some kind of weird life skills course or something like that. He described to me how participants in a group exercise were talking about occasions where they had been physically and sexually abused, and crying. He said that he thought it was very positive and cathartic for them to talk about this in a group situation. On the contrary, the very idea appalled me. I think that for some people it can be a profoundly negative experience, and indeed, if not well handled, it can exacerbate any latent mental problems. A psychologist friend of mine once said, “It’s easy to take people’s heads apart and find out what’s bugging them, it’s far more difficult to put their heads back together. If you’re not careful and clever, you might unleash some stuff and be unable to resolve it and fix it.” You have to be so careful.

I couldn’t help thinking of all of this when I read a recent post by Marcellous, entitled A sad case. The case, MacKinnon v Bluescope Steel Limited [2007] NSWSC 774 is indeed very sad. To quote from Marcellous:

…[I]n extreme summary form, in 1996, Dr McKinnon, then aged 35 and a doctor employed by BHP (now called Bluescope Steel), attended a residential leadership course run for employees of BHP. The course was a fairly intense experience. At some stage during the course, McKinnon suffered something which in lay terms might be described as a nervous breakdown, from which he has never recovered. The case concerned whether BHP, or possibly the people who ran the course breached some duty towards Dr McKinnon and so caused this breakdown so that they should be required to compensate him for the consequences of this breakdown.

The amount at stake was substantial. The lost earning capacity for the rest of his working life of a doctor aged 35 is a considerable amount of money. Altogether there were 93 hearing days: 89 in which evidence was heard and a further 4 days for closing submissions.

Poor old Dr MacKinnon lost the case. He could not prove that BHP or the organisation which ran the course had breached their duty of care, and in any event, the trial judge formed the view that even if there had been a breach, he would have been unable to prove that the breach caused the injury. It seemed he had already been stressed before he attended the course, and had had some clashes with his then-boss. A number of incidents during the course exacerbated the tension between him and his boss, such that the plaintiff became mentally ill. But he was not forced to attend the course, or to continue attending it. There had been various measures put in place to try and monitor the mental health of the employees by both BHP and the organisation which ran the course. Dr MacKinnon had shown signs of increasing distress as the course went on, but the defendants had tried to alleviate and manage this.

I wonder whether companies will reconsider these kind of “team building” exercises in light of cases such as these? Even though BHP won, it must have been expensive to defend a claim like this. Personally, I won’t shed too many tears if courses like these go the way of the dodo!

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Karma

Mr Pearson, the “$54M pants man” (mentioned previously here and here) is unlikely to have his contract as an administrative law judge renewed. Glad to hear it. He doesn’t sound like he’s in a condition to judge other people.

(Via Legal Blog Watch)

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