The unforeseeable plaintiff

By skepticlawyer

Making sense of the world requires–nay, demands–that we find patterns in events. And, as part of modernity, we’ve become used to the clear-headed, formalised pattern-finding of law and science. There are ways to look for explanations, and things that ought properly to be discarded along the way. That’s why we have ‘legal method’ and ‘scientific method’. Those of us with some statistical literacy are aware of the dangers of confusing correlation with causation, or drawing on analyses where N is too small or too unrepresentative, or not comparing like with like (lawyers and scientists both have to avoid the last one). Indeed, ‘one of these things is not like the others’ and ‘treat like cases alike’ is a bit of cognition shared by both methods. Legal method and scientific method are very different from each other in other respects.

However, this careful use of method based on empirical testing and the facts of the case and the best evidence rule and so on is either (a) relatively new (scientific method) or (b) relatively rare (legal method). It is one of the sobering details of humanity’s collective generation of self-knowledge that science proper is only about 350 years old, while legal method recognisable to a modern lawyer arose in precisely two civilisations. Two. Countem.

For most people in most civilisations for most of history, the reason the volcano erupted was because the great God Zog was angry. And the reason the people in that village sickened and died was because this evil witch-woman cast a spell. And the reason bad stuff happened to us was because we failed to worship God/s in the right way. And so on. Occasionally people in the past stumbled on a bit of law or science by mistake: pigs really do use up a lot of water and it’s very unwise to keep them in a desert environment, so Jews and Muslims get an accidental science ‘tick’. Local communities really are better at managing their own affairs, rather than being directed by centralised, top-down diktats: so the medieval Japanese get an accidental law ‘tick’.

But this is rare. The towering pile of crap that our ancestors took for granted is stacked so high with the detritus of stupid attempts to locate patterns where none exist that Sergei Bubka couldn’t pole vault over it. We can be very stupid apes indeed.

The search for patterns is still very much with us, of course. Nothing quite matches the rich and fruity madness of a really complex conspiracy theory in its attempts to extract data from noise, and not just recent conspiracies like the idea that 9/11 was an inside job or that the moon landings were faked. Older conspiracy theories–the idea that the Jews were engaged in a secret plot to take over the world, for example–should resonate with us not just because they’re ridiculous, but because they’re actively dangerous. People–lots of people–have died thanks to the widespread belief that Jews were/are engaged in a secret plot to take over the world. There are other case studies, too. Remember the religious nutter who blamed 9/11 on abortion and paganism? Or the religious groups who’ve blamed the killings in Sandy Hook Elementary on the absence of prayer in schools?

However, we needn’t stop with conspiracy theories: pattern-finding where no patterns exist is alive and well and seemingly plausible in lots of places, partly because those engaged in the hunt for patterns now think that they have a good enough grasp of the pitfalls of mistaking correlation for causation, or for extracting the wrong data from the right noise, or for identifying what really happened that they won’t fall into the same trap as the people who blamed the erupting volcano on the Angry God Zog.

So, in the last fortnight, we’ve had two utterly mistaken attempts to find patterns. The first involves an abuse of legal method, and the second involves an abuse of scientific method.

The first involved an argument that 2DayFM’s prank call caused the suicide of nurse Jacintha Saldanha. The second involved the ascription of the killings in Sandy Hook Elementary (variously) to mental illness, guns, anti-depressants, autism, and angry white boy angst (no, I’m not making the last one up), among other things (and I’m sure more correlative/causal speculations will emerge in the next few days).

I’m going to direct most of my comments in this piece to the 2DayFM prank, because I am in possession of sufficient information to make my comments properly informed and have good knowledge of legal method. One of the things that has annoyed me about both situations is the wild speculation in the absence of sufficient information. The fact that the killer in Sandy Hook was misidentified and the world was told that his mother was a teacher at the school when she wasn’t suggests the extent to which people were pattern-finding not only because they don’t understand the limits of available information, but also because they were engaging in a desperate attempt to paint a coherent picture by adding details that were either distorted or invented. There is too much missing information to be coherent about Sandy Hook right now, apart from the most anodyne observations.

So, enter the unforeseeable plaintiff

In law, it is sometimes possible to hold someone responsible for harms he causes to another person in a context outside the criminal law. The harm is compensated for by the payment of damages: to place, insofar as money can do it, the plaintiff in the same position he would have been, had the tort/delict not been committed. ‘Tort’ is what lawyers call a civil wrong in common law countries. ‘Delict’ is what lawyers call a civil wrong in Roman law countries. The rules developed in both civilisations (Roman and English) are broadly similar, and in recent years have come to influence each other. The most famous tort of all is, of course, negligence.

When I say that word ‘negligence’ I’m sure many of you have mental images of ambulance-chasing lawyers, of ‘no-win no fee’ arrangements, of cheesy late night advertisements that ask you if you’ve been injured recently and if you have, please call our hotline.

It is not an area of the law that attracts a great deal of affection.

However, it is an area of law that exists to make sense of the conundrum of human pain. It acknowledges that we sometimes desperately, desperately wish to blame someone for something, and then give the hurt person enough money to assuage their pain. In so far as money can do it, of course. Does it matter when you’ve lost your legs? And in the wake of 2DayFM’s prank call gone terribly wrong, lots of people suddenly got very tortalicious. They wanted to do the negligence thing and put some blame somewhere because something terrible had happened.

In a grossly simplified version of the law, to make out a case in negligence, you have to establish first that there is a duty of care; secondly, you need to show that the duty of care (at a given standard) has been breached; and thirdly, that the breach caused the injury. Then you establish whether there are any relevant defences, and the quantum of damage caused. That damage, in its turn, must not be ‘too remote’: not too distant in time or space. At each of the first three stages you have to decide whether the injury was reasonably foreseeable. At each stage the test gets more specific and difficult to establish.

The easiest test to satisfy is the existence of a duty of care: in Roman law countries, the test is drawn particularly tightly at the causation stage (which is why you see so much precarious scaffolding in France and Germany, and why the latter country has no speed limits on the autobahn). In common law countries, it’s easier to make out a case in negligence at each step of the process, but moves to impose limits often happen at the breach of duty stage: you have to get a bunch of professionals to agree that a fellow member of their cabal breached his duty at a standard on which all those professionals agree: the so-called Bolam Test. Good luck with that, by the way.

But duty is the easy bit in both Roman and English systems. Except when you encounter the unforeseeable plaintiff. Then there isn’t even a duty of care. Jacintha Saldanha falls squarely into this category, which means (by way of explanation) I ought to introduce you to the law’s most famous unforeseeable plaintiff.

Step forward, Mrs Palsgraf

In Palsgraf v Long Island Railroad Co 248 NY 339; 162 NE 99 (1928), Mrs Palsgraf was waiting for a train at one end of the Long Island Railroad Co’s platform. At the other end of the platform, a train was just pulling out when two men ran to catch it. They tried to jump aboard. One man got on successfully, but the second could not quite get up. Two of the railway company’s guards attempted to help the man, one pushing him up from behind, and the other holding out his arm to assist the man up. One of the guards dislodged a parcel that one of the men was carrying under his arm. The parcel was about 15 inches long and covered by newspaper. It looked harmless, but it actually contained fireworks. When the parcel fell onto the platform, the fireworks exploded. In the wake of the explosion, some metal scales next to where Mrs Palsgraf was standing were dislodged and fell and hit her. It is not really clear whether the scales were dislodged by the explosion or by the panicking passengers, but the court presumes the former. Mrs Palsgraf was badly hurt as a result.

The test for reasonable foreseeability at the duty of care stage is whether the defendant and plaintiff are placed in such a relation to one another that it is reasonably foreseeable that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter. This meant that the question in Palsgraf was whether it was reasonably foreseeable that Mrs Palsgraf would suffer the injuries she did. Clearly the chain of events was pretty crazy. Cardozo J (for whom the American law school is named) of the New York Court of Appeals delivered a famous judgment in favour of the Railroad Company (and ultimately, he made up the majority). He said:

Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and wilfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.

Negligence, like risk, is thus a term of relation. […] [B]odily  security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not wilful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended.

So Mrs Palsgraf went home empty-handed. And many people, encountering her story for the first time, often think that justice was not done. Indeed, in the court below the appeals court where Cardozo J presided, the decision went 3:2 in the opposite direction.

If one applies the facts of Palsgraf to Jacintha Saldhana’s situation, one gets a chain of reasoning that looks a bit like this (hat tip to USAnian lawyer mate Tim Mulligan):

The nurse was tricked into giving private medical information about Kate Middleton. The transgression was disclosed to the media. The media made hay of it. The nurse suffered tremendous embarrassment. The nurse committed suicide. The alternative explanation, that the suicide was unrelated to the embarassment, may or may not be true but seems less likely, albeit without seeing detailed evidence. Granted, the links are far too weak to support a burden of proof in law. Doing this kind of prank is just not likely to cause death, so it would be impossible to impose liability. But nonlegal causation seems possible if tenuous to be sure.

The problem, of course, is at the ‘tricked’ stage. Since when do radio stations owe a duty of care to their listeners or, even worse, people who are not their listeners?

Step forward, Mrs Palsgraf.

Of course, there may be other legal issues in play: employment law (a point made by professional nursing associations in both the UK and Australia before the suicide), data protection, breach of privacy. British comedian Dom Joly, a ‘pranker’ extraordinaire, makes it clear in this piece that he always gets consent before broadcast. Yes, this removes some of the frisson attached, inevitably, to the ‘biter bit’, but it saves him from a lot of lawsuits:

Online, the lynch mobs gathered and the radio station in Australia where the two DJs worked was the target of thousands of angry e-missives demanding that the prank callers be hanged, drawn and quartered – and those were the liberal ones.

As a “pranker” myself (although I loathe that term) I have to admit that I very much had the feeling of “there but for the grace of God go I”. How would I feel if somebody to whom I had done something on one of my television programmes had killed themselves as a direct result of it? It would be the end of everything. That’s why we have strict rules that insist that everybody we film has to give (and sign) an informed consent form that allows us to use the material we have shot. This has often prevented us from using footage that was comedy gold. The most normal reason for consent being denied is that the person was wandering around with someone that they shouldn’t be with and I’m certainly not in the business of home-wrecking.

This means that if there is law to which we can to turn to assuage someone’s hurt, it will not provide balm for Jacintha Saldhana’s family’s aches. It may protect Kate Middleton’s privacy, or the hospital’s professional reputation, or–were she still alive–Jacintha Saldhana’s employment contract. This does not mean that the law is an ass. It just means that law has the wrong tools for this particular situation: sometimes law fails because its tools are blunt (how often have I told this blog’s readers that law is a broadsword and not a scalpel?). But in Jacintha Saldhana’s case the law fails because none of its tools fit.

So we cannot turn to law

It has become, of late, very much a part of the modern ‘solution’ to nastiness that hovers around the blurry limits of legality to turn, immediately, to law, and not to let it go. This is rarer in the US than it is in Britain or Australia or on the Continent, but even in the US laws have been passed restricting Westboro Baptist Church’s notorious picketing of funerals. In Scotland, they’d be pinged for breach of the peace before you could say ‘William Wallace’, while England has a smörgåsbord of public order offences from which to choose when it comes to people who carry on like pork chops in public. Americans are always horrified by this, but then Scotland and England are both robust democracies with a reverent respect for the rule of law, so the difference may be one of degree and not kind.

If there is no law to wield on Jacintha Saldhana’s behalf, then perhaps there is something else. And it is in this ‘something else’ where people have to make decisions about what sort of society in which they wish to live, what they think is funny, what they think is reasonable. And all those decisions ought properly to be made without turning to law. You, the citizens of a liberal democracy, are on your own. The King’s writ not only does not run; it ought not run, lest we set lawyers up as some sort of weird council of Platonic Guardians (you don’t want that, you really don’t).

In this context, I found a piece by another lawyer-writer (yes, I’m not the only one!) of particular moment. Here is Matt Rubinstein making a great deal of sense (and do read the rest of what he says):

My favourite film in the 1990s was probably Terry Gilliam’s The Fisher King, which stars Jeff Bridges as radio cult personality Jack Lucas, whose offhand incitement to class warfare prompts a lonely caller to open fire on a yuppie watering-hole, killing seven people and then himself. Jack is dancing around his penthouse, rehearsing a catchphrase for a new TV vehicle, when he sees the news on his three televisions. In Richard LaGravenese’s draft script, Jack is finally silenced by the unfolding report. In the filmed version, he manages a manifestly inadequate, and yet somehow perfect, “Fuck.” You can see in his face that he’s not just worried about his career or the public recriminations: he’s devastated because the world has just revealed to him that he’s an arsehole.

Like most people on this side of the world, I heard the news of Jacintha Saldanha’s death hours before Mel Greig and Mike Christian woke up on Saturday morning. I could only imagine that their reactions were something like Jack’s here. I have no doubt that they’re as shattered, gutted and heartbroken as they say. But their near-identical interviews with A Current Affair and Today Tonight are a little off-putting in their repeated insistence that (a) they weren’t responsible for putting the prank to air, and (b) nobody could have expected or foreseen the consequences. I believe that both these things are largely true, and also that the presenters were lawyered out of expressing anything that might be mistaken for actual remorse—as opposed to being “sorry that this has happened”—for the usual reasons. But it doesn’t hurt to admit that you were an arsehole. And if you ring up a maternity ward and ask to speak to a woman who’s having a difficult pregnancy and pretend to be her relatives by putting on silly voices—I’m sorry, but you’re kind of an arsehole. You don’t need to take all or most or even much of the blame for what ultimately happened, and you don’t deserve death threats or invitations to suicide. But you can’t expect much sympathy either, because you were kind of arseholes, and you might as well just own that and try not to be such arseholes next time. If you have to prank call someone, call someone who could conceivably be argued to deserve it. If things go wrong—or horribly right—maybe bail out of the call. Have a think about what you’re doing, and don’t just rely on “processes” you don’t understand to decide whether it’s a good idea or not. Little things.

Matt’s piece shows how to address dickishness without getting all legal on everybody’s arse. But even when one resists the temptation to go to law, there are two arguments that you just can’t make, because they reveal you to be not just an idiot, but an idiot across time and space. Those two arguments are as follows:

1. ‘But these mouthbreathers (who listen to 2DayFM) vote!’


2. ‘But working-class people listen to 2DayFM; attacking what ordinary people like is elitist!’

But these mouthbreathers (who listen to 2DayFM) vote!

Throughout human history, people considered mouthbreathers were denied the vote or (in non-democratic/representative systems) other forms of political and economic agency. Most of the time, the people considered mouthbreathers were women and poor and middle-class people. Occasionally one encounters a civilisation that doesn’t write women off (the Romans, the Spartans, the pre-First Reform Bill Scots), but they still wrote off everybody who was poor (male and female). In more modern times–once we’d discovered that enslaving people on the basis of skin-colour made it quicker and easier to catch them and turn them to our economic ends–we did the same thing to black people, too.

Even the most sensible and moderate thinkers–people who’ve fed our modern ideas about liberty and democracy–bought into the mouthbreathers rhetoric. In the middle of a beautiful argument for extending political rights to Roman women (they already had full economic rights), Stoic philosopher Musonius Rufus casually mentions that you don’t want to give stupid people the vote. John Stuart Mill, the saint of liberalism, was behind the separate university seats that gave graduates of Oxford, Cambridge, and the Ancient Scottish universities two votes: one in their university constituency, and one in their home constituency. Mill thought that this would be a prophylactic against ‘crude majoritarianism’ (ie, the stupid people).

Unless you’re serious about restricting the franchise on the basis of education, property holdings, or some other metric, don’t go there. Just don’t.

Especially if you’re female or have net worth of less than £1,000,000.

But working-class people listen to 2DayFM; attacking what ordinary people like is elitist!

This suggests that the tastes evinced by people who are poorly educated (or just poor) are in some way elevated because the people who exhibit those tastes are authentic (and, presumably, oppressed). It is an outgrowth of the postmodern focus on ‘authenticity’ and is in fact deeply elitist: it holds poor people and women and black people and any other ‘group’ among the currently ‘politically correct to like’ (US Republicans tried desperately to add white religious Southerners to the mix; they failed) to a lower standard. They can listen to shitty music and watch Jerry Springer and speak in words of two syllables or less because, well, they’re poor (black, Muslim, Asian, working-class), and because poor, more real!

Of course, this is the intellectual equivalent of the smartest kid in the school patting the learning disabled kid on the head and saying ‘you did your best’. It also pretends that culture is a democracy (it isn’t) and confuses political agency with cultural agency. It is entirely legitimate to write off the tastes and artistic preferences of an entire class of people without simultaneously denying them political agency. Their economic circumstances (or race, or gender, or whatever) should provide them with no protection. Because political rights and cultural tastes are different things, and should not be confused. One billion people who all like (x) can be wrong.

Unless you’re serious about equating everything from dog-fighting and gladiatorial shows to Hilary Mantel and Puccini, or some other cultural artifact, then don’t go there. Especially if you’re highly educated and cultured and prefer Mantel and Puccini to dog-fighting or football hooliganism.

2DayFM is not improved by the relative ‘authenticity’ of its audience. Shit taste remains shit.

But what about Sandy Hook?

At some point, I will have something further to say about Sandy Hook Elementary, but I’ll need to know more, first. I realise I’ve probably ‘missed the moment’ with 2DayFM, but I’d rather be right than quick; I think this preference goes with being a lawyer. When the time comes, I’ll try to be right (not quick) about Sandy Hook.

Instead, I’ll leave you with two pieces of information to consider and digest. The first is a graph illustrating just how much more violent the US is than other developed democracies (even allowing for the recent decline in crime rates across the developed world, and independent of gun ownership). The second is Charlie Brooker addressing why it’s so very stupid to talk about school shooters in the way we do.

It may well be in all our interests to take what he says seriously. If we don’t, I submit, we’re actively drawing patterns that aren’t real. We’re also actively inviting people into our beautifully (but fakely) patterned lion’s den. And then we’re leaving them there.




  1. Tom Isaac
    Posted December 17, 2012 at 8:08 am | Permalink

    Both on purpose or by accident I try a different strategy for something important and, I like what I see! This could be the start of something new and bold, so I will go with it all the way.
    Working in groups is a lot easier when you’re surrounded by like-minded people. I can’t change the people around me, but I can change what I expect of them. It’s important to make sure that the other people are just as invested as I am.
    “I have the choice of being constantly active and happy, or introspectively passive and sad. Or I can go mad by ricocheting in between.”
    The most important document in the History of Australia is the Commonwealth of Australia Constitution and is relevant to this very day.
    The Constitution of the Commonwealth of Australia 1901 (UK) says, “Humbly relying on the blessings of almighty God”, it is inherent in Biblical law and also in common law, it is foundational basis that a man or woman is innocent until proven guilty.
    The preamble of the Constitution begins with “We the people”, not we the government, parliament or senate, therefore we the people rule. We elect governments to serve us the people so we are their employers and must do as we ask them we pay our taxes, which pays their wages. We do not elect them to rule over us as the tyrants they are proving to be. We are not their slaves and they are not our masters.
    It has come to my attention that the current government is using the Christmas ‘Silly Season’ to its advantage, hoping that we won’t notice the extraordinary attack on free speech and our freedom, masquerading as the new and improved ‘Human Rights and Anti-Discrimination Bill 2012’.
    Submissions to this Bill close on Friday 21 December 2012AD, three (3) days before Christmas. Almost every Human Rights Anti-Discrimination Bill for the last four (4) decades has been a reversal of Christian and Constitutional freedom and heretic Rights and the ability to exercise and practice our faith in good conscience. This Bill is no different. This new Bill, if brought into law, will reverse the time honoured and proven concept, one of the foundations of our freedom. The new Human Rights and Anti-Discrimination Bill 2012 is fallacious for several reasons:
    • It is impossible to outlaw offence, as admirable as the idea might be.
    • The ability to be offended is part of our freedom of speech and the necessary part of the ongoing need for exercise of love and forgiveness.
    • The preservation of our right to freedom of speech necessitates the freedom to be offended and the freedom to forgive.
    • As soon as human rights become ‘identified’ as opposed to being ‘assumed’ it creates a lawyers picnic.
    • The reversal of ‘innocent until proven guilty’ is an amputation of our human rights.
    • The more we go down this road, the more laws we will need and the making of them will never end
    • The new proposed legislation will further erode our natural heretic rights and freedoms and is a case of political correctness on steroids.

    The Human Rights and Anti-Discrimination Bill 2012 undermines free speech, freedom of association and natural justice, and freedom of religion.
    Roxons Bill chisels away at Australian’s long cherished right to freedom, right of association and right of religion thus giving more power for authorities and governments to unlawfully abuse.

  2. Mel
    Posted December 17, 2012 at 10:12 am | Permalink

    My thoughts:

    I suspect Saldhana’s suicide would be covered by workers compensation and that this would pay for funeral expenses and a lump sum and/or periodic payments to her dependents.

    In the event that her family successfully sued the hospital/ Radio 2DAYFM/ radio presenters, any amount payable may be subject to an offsetting provision under UK workers comp law. However, I think SL is correct in arguing that legal action in this case would probably fail.

    Radio 2DAYFM has saaid it will give the Saldhana family approx $500,000. Ethically, this sounds reasonable.

    I also wonder how many of the people who are now pointing the finger at the radio presenters would’ve found the prank funny if it hadn’t had tragic consequences. Many, I think.

    Finally, I hold 2DAYFM management responsible than the actions of their radio presenters, since the prank was approved and the management either explicitly or implicitly would have expected presenters to do this type of “edgy” stuff. Don’t blame the monkey, blame the organ grinder.

  3. Posted December 17, 2012 at 10:39 am | Permalink

    Finally, I hold 2DAYFM management responsible than the actions of their radio presenters, since the prank was approved and the management either explicitly or implicitly would have expected presenters to do this type of “edgy” stuff. Don’t blame the monkey, blame the organ grinder.

    I actually agree with this. In fact, Marcus Gibson made an excellent comment on my FB page that I just couldn’t fit into this piece, but now you’ve raised the issue, I’ve an excuse to quote it:

    If this was a company in any other industry the CEO would be front-line for the whole deal, not the employees. Austereo CEO/owner Rhys Holleran should be doing wall-to-wall press conferences and interviews – justifying his company’s practices and procedures, taking all questions – like a real CEO.

    Instead, Holleran’s response, and the response of chairman Max Moore-Wilton has been weak.

    Holleran: “I tried to call them like five times.”
    Moore-Wilton: “It’s ok. I’ve written them a letter.”

    It has been the same story with repeated Sandilands and Jones scandals at Austereo. Only in the media can you send your staff to take the heat. And only in the media will other agencies cut you that kind of slack because you’re a media owner, and they do the same job.

    Leadership? Holleran… CEO? Time to face the ‘music’.

    This was not an ‘accident’ or a ‘tragedy’. It was company policy.

    I should add that Marcus made his observation before 2DayFM offered the Saldanha family the money.

  4. Posted December 17, 2012 at 12:08 pm | Permalink

    I can’t help but wonder how differently people would see the issue if it was some random on the internet who made the call, posted it to YouTube and then watched it go viral. Are people more eager to lay blame on an abstract entity like a company than they are on a person for the same mistake?

    To what extent does the fact that the radio station regularly engages in the same type of behaviour affect its culpability in this particular case? If you regularly stir up emotions by making fun of people eventually someone is going to snap in a serious way. While the facts of this particular case might have been unforeseeable, is there a broader pattern of behaviour and causation in which some form of negative outcome could have been foreseen?

  5. Posted December 17, 2012 at 12:39 pm | Permalink

    Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station.

    (Emphasis added.)

    I’m not so sure that such a concession would be so readily made today. It seems to hang too precisely on the very accident that happened, rather than the likelihood of some accident or other.

    I suspect that’s why the focus of negligence laws is often the focus on the requirement for systems which will prevent any of a range of accidents happening. (Mrs Zalusna trumps Mrs Palgraf.)

    It doesn’t sound so unforeseeable to me that some kind of injury should occur if objects are thrown from moving trains at railway platforms, nor that persons struggling to board a moving train may jettison objects to the peril of other passengers. Isn’t that why we have doors which have to be closed before the train pulls out, and (until recently) the person with the whistle and the white flag, as well as, often, a guard on the train watching out before the little electric bell is rung?

  6. kvd
    Posted December 17, 2012 at 12:51 pm | Permalink

    marcellous your facts are wrong but your opinion is one I agree with. The ‘close’ cause was improperly secured ‘metal scales’; the incident which caused their loosening was but one of many possible causes for this failure.

    That’s why I’ve always thought that the rest of the unlikely chain of events is extraneous to the injury.

    But then I ain’t a lawyer 🙂

  7. Holden Caulfield
    Posted December 17, 2012 at 1:19 pm | Permalink

    Even to this layman, there seems to be an extraordinary number of separate legal issues here, or perhaps not. Hopefully, someone can clarify.

    1. Is it against the law to ring a hospital and asking about a patient, using deceit- lying about who you are?That is, did M&M commit an offence the moment they said they were the queen to Jacintha Saldanha? Or only when they repeated that deceit, actually resulting in getting the medical details? Would this have remained an offence, even if M&M never mentioned it ever to one other human being?

    2. If the original deceit was not itself so bad, what about broadcasting the deceitfully-obtained information? One side of me says that KM, and the Palace had already been very forthcoming in broadcasting globally what was going on medically, so could much damage had really been caused?

    I wouldn’t be surprised if this influenced 2Day’s management to go ahead with the broadcast. It might have been a very different situation had the Palace lied about why Kate was in hospital. Saying, for example, “exhaustion”, or a sprained wrist. But without the subsequent suicide, had any legally-actionable damage really been suffered?

    3. Presumably, both JS and the ward nurse could have faced workplace disciplinary processes had they not followed some instructions, or other, but that would be an internal employer/employee matter.

    4. But what if it were another celebrity (or even an ordinary Joe) in hospital, who had not told a soul? What, if instead of Kate Middleton, it was Penny Wong’s partner in the hospital? As it was so early in the pregnancy, the Wongs had not announced it to anybody, even their families. What if it wasn’t even public knowledge that Penny Wong had a gay partner? What if M&M were Coalition stooges, who wanted to out Wong, especially as both abortion and gay marriage were hot topics at that time?

    5. As most of us eventually learn either through experience with friends, family, neighbours, colleagues, suicides are incredibly complex things to try and pin down a “cause”. We know next to nothing about who Jacintha Saldanha was, let alone where her emotional-state was at.

    6. Which brings me to what I think is the most fishy event in this whole tragedy – the workplace “counselling” she received. She suicided right after this ‘counselling’. Given how the unbelievably hypocritical broadsheet “quality” press (“The Guardian”), have already sniffed out details about her THREE suicide notes, how long before somebody “leaks” the detailed notes taken during the hospital’s “counselling” sessions with Jacintha Saldanha. I think they would make very revealing reading indeed.

  8. Posted December 17, 2012 at 1:28 pm | Permalink

    Someone is negligent if they fail to take proper care. In law, that is classified as a duty to take reasonable care of your neighbour, and there is a lot of argument about who is your “neighbour” for those purposes.

    It is another thing to do something which is intended to cause harm. I think it is unreasonable to characterise what the 2day DJ’s did as negligence. What they did was intentional and intended at the very least to embarrass as a means of getting a laugh at someone’s expense.

    There has been plenty of focus by lawyers and those familiar with the lingo on whether Ms Saldanha’s death was a “reasonably foreseeable” consequence of the conduct. There has been less focus on the character of the action of the DJ’s which, as I say, was intended to cause harm, albeit of a much lower order.

    Perhaps, if you do something intentionally, the boundaries on liability should be wider. The reason we have had concepts such as “reasonable foreseeability” (which is now largely discredited in Australia) is because we need to limit the circumstances in which people are liable for negligent conduct. If, for example, we say that the damage has to be reasonably foreseeable, we limit the class of people who can sue a negligent defendant.

    The question is: why does someone who acts deliberately to harm someone else deserve the same limitation on liability? We don’t provide the same protection to a fraudster, or someone who makes misleading statements in trade or commerce.

  9. kvd
    Posted December 17, 2012 at 1:58 pm | Permalink

    Could I just add one question to HC’s list at the moment? Does anyone really believe that, with KM’s profile and daily presence in the press, this was the only inappropriate contact (not just phone calls; include all the usual stuff like impersonating a doctor, cleaner or nurse, or picking through rubbish, or renting a room opposite for a telephoto camera, or bribing catering staff to find out what/if she ate, etc.) faced by the hospital staff?

    You think the rest of the world went to sleep, leaving the field open to a couple of downunder DJ’s to get the goss?

    Nick: The question is: why does someone who acts deliberately to harm someone else – you upgrade ’embarrass’ to ‘harm’, and then you suggest intent. I don’t expect they actually gave a thought to the person who happened to pick up the phone; I don’t even expect they expected to be put through. And in your analysis where are you allowing for the fact that one person’s intense chagrin is another’s “d’oh”?

  10. Posted December 17, 2012 at 2:15 pm | Permalink

    [email protected], in regards to your points 1&2 I think that if it were anybody else I think those would be valid points. However as we’re talking about the future monarchs of this country, I think information about their health is an important political issue and is fair game. If they want privacy then they ought to renounce the throne.

  11. Posted December 17, 2012 at 2:23 pm | Permalink

    I thought this a most penetrating and thoughtful post. I wrote my own a day or so after the incident, but I don’t have a legal background and didn’t know about the American case.

    It’s not only in the media that staff go to the firing line when there is an incident. Nurses can find themselves in the strange environment of the court when there has been a case of alleged negligence on the part of a doctor.

  12. Posted December 17, 2012 at 2:35 pm | Permalink


    The ‘close’ cause was improperly secured ‘metal scales’; the incident which caused their loosening was but one of many possible causes for this failure.

    So the ‘close’ cause in the suicide was the decision to put a such (presumably) mentally unstable person on staff in such circumstances, rather than the unlikely chain of events which caused her to go over the edge?

    Someone is negligent if they fail to take proper care.

    What would have been ‘proper care’ for the radio station in this case?

  13. kvd
    Posted December 17, 2012 at 2:52 pm | Permalink

    desipis, “yes”, I think I would make as the answer to your first question. (Provided the hospital admin was actually aware of what you suggest is the case, and made a decision to ignore her instability – none of which is actually, factually established at the moment)

    As to the second question, perhaps following their own rules (prior permission granted etc.) would be a good place to start.

    A little known fact about the Palsgraf case is that the reason the guy with the fireworks was running for his train was that the taxi driver he chose to get there did not know the fastest route to the station, and that he’d declined the first taxi which arrived because of his distrust (dare I say unfounded racist belief?) of the skin colour of the driver.

    (I just made that up, to add to the ‘legal theatre’ of all the other carefully reconstructed legal facts)

  14. Posted December 17, 2012 at 3:43 pm | Permalink

    Wonderful work SL, I curtsey; and if I ever need someone between me and the slammer, I want it to be you.
    You have certainly not ‘missed the boat’ as the details have been slow coming, and vary from source to source.
    I need to know 1. why the London press has not haunted that street between the hospital and the nurses home, 2. why she died in a building FULL of CPR experts (many reports said ‘conscious when found”, 3 why a nurse would hang herself in a wardrobe with a scarf, when drugs and scalpels are everywhere, and 4 WHY IS THE UPSTAIRS NURSE STILL ANONYMOUS. that is so very suspicious. I have blogged at my place on all that).

    HoldenCaulfield made good points but this one “did M&M commit an offence the moment they said they were the queen” – they did not.
    “can I speak to Kate my grand-daughter”
    in that clenched-jaw Sloane accent merely implies some majesty, without claiming it.
    It is obvious that there are other aspects we do not know, that would make sense of this mess.
    Here’s what everybody has to freak out about – Mel Greig’s state of mind – it is totally awful to feel The World is looking and loathing you, and the Duchess losing that baby from all the shock.

  15. kvd
    Posted December 17, 2012 at 4:00 pm | Permalink

    Here’s what everybody has to freak out about – Mel Greig’s state of mind

    My freakometer just went down several notches by your casual dismissal of the fact that she was but one of two inane talking heads. But of course, the other was ‘a man’ so I guess that’s ok.

  16. kvd
    Posted December 17, 2012 at 4:08 pm | Permalink

    In for a penny…

    I need to know


  17. Mel
    Posted December 17, 2012 at 6:39 pm | Permalink

    Kvd, I think it may be best to leave the ghost of Miss Marple to her own feverish imagination 🙂

  18. Mel
    Posted December 17, 2012 at 11:10 pm | Permalink

    2Day FM was also embroiled in controversy when former presenters Judith Lucy, Kaz Cooke and Peter Helliar revealed they were asked to host a stunt called “celebrity sperm”. The station intended to ask singer Guy Sebastian for his sperm, then encourage female listeners to compete for the chance to impregnate themselves with it.
    The trio refused to be part of the stunt.”


  19. Adrien
    Posted December 18, 2012 at 8:35 am | Permalink

    If you working in telelvision and seriously suggested the forensic psychiatrist’s prudent advice viz the portrayal of school slaughterers you’d probably end up fired as in Jerry Macguire.

  20. fxh
    Posted December 18, 2012 at 4:25 pm | Permalink

    I’m a bit over the frenzy of self righteous oneupmanship in this case so perhaps haven’t followed every detail.

    But as I understand it Nurse Ms Jacintha Saldhana did NOT give out any info on the precious pregnant princess. She merely put a call through to the ward/room where another nurse or aide gave some pretty innocuous information.

  21. Posted December 18, 2012 at 5:34 pm | Permalink

    ….presenters Judith Lucy, Kaz Cooke and Peter Helliar revealed they were asked to host a stunt called “celebrity sperm”. The station intended to ask singer Guy Sebastian for his sperm, then encourage female listeners….

    Erm… Mel… were they being asked to collect the sample live…. on air?

  22. fxh
    Posted December 19, 2012 at 8:02 am | Permalink

    From what I’ve heard of FM commercial radio they’d have no trouble collecting their sperm whilst on air – the studio would be full of it from their main activity.

  23. Posted December 19, 2012 at 4:38 pm | Permalink

    Oh very very good! @FXH

  24. Holden Caulfield
    Posted December 24, 2012 at 2:59 pm | Permalink

    Well this puts a cat among the pigeons

  25. Holden Caulfield
    Posted December 24, 2012 at 3:00 pm | Permalink

    Sorry, forgot the link

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