Public Liability

[turboplanner]

Hazelwood's French operator to stand trial over 2014 fire in open cut coalmine

 

This story refers to a Worksafe trial; what the victims do comes next.

 

This case is on about the usual timeline; the surprise expressed by the Operators is interesting, because you would expect such a large operation to be aware of the process.

 

 

[pmccarthy]

There are always people who resist change. As a manager, you ultimately have to re-educate or replace those people. If they stay and snipe at the reporting system they are toxic.

 

I can only repeat my strong experience that reporting and examination of incidents and near misses leads to fewer accidents and fatalities. Of course, it takes time, cost and effort. What is your life worth?

 

 

[turboplanner]

Kangaroos on the runway a problem; this one will be of interest to you Richard.

 

Five Star Medical Centre Pty Limited v Kempsey Shire Council - NSW Caselaw

 

 

[M61A1]

I should be suing our state govt for not keeping the kangaroos off our roads....who's in? Could be a dollar in it.

 

 

[Yenn]

Clean up a spill of bleach with salt.

 

Anyone know what the result would be?

 

 

[Pominaus]

I should be suing our state govt for not keeping the kangaroos off our roads....who's in? Could be a dollar in it.

Seen this at Wilson's Prom National park - people yelling at a park ranger, along the lines that it's incredibly dangerous 'allowing' kangaroo and emu on the roads at night.

Don't get me wrong, legislation in aviation is definitely a good thing overall and saves lives. People pine for the old days of buying your own plane, reading the manual and teaching yourself to fly, but ... well yeah we know how that goes. However surely people also need to be held responsible for their actions. If I was doing a reno by myself and someone broke in to my house and electrocuted themselves, common sense says that my liability should end at the point where I locked the front door.

 

 

[Bruce Tuncks]

I'm one who pines for the old days. It's twice as dangerous to be 5kg overweight as it is to fly our sort of planes.

 

So should we pass laws about overweight? Surely that would be insane, but I have no objection to charging overweight people more for medical services. Years ago, they used to weigh the person together with his luggage and so effectively charged fat people more.

 

I reckon people should at least be able to agree not to sue. For example, a woman could then have her baby in her home rural town if she wanted to.

 

With glider rides, we make the passengers sign a "blood sheet" agreeing not to sue and so far in Australia this has stood up to a court case. There should be more of it say I and a sign should be enough instead of a signed sheet of paper.

 

 

[kaz3g]

Hey Turbs, (Out of the frying pan and into the fire)So your telling me that you witnessed the spillage of a substance in a public place, and then watched an employee start mixing other chemicals into it, and this newly created chemical cocktail was mopped up by other employees. (And you think this is good !!!!!!)

What happened to this unidentified substance, Was it stored in a Hazmat bin where industrial chemists could analyse it, and formulate a safe disposal for it? Or was it simply washed down the drain for convenience?, where it may have knocked out the the entire Eco System of the sewerage system, and wiped out mankind as we know it..

 

Why didn't you act, and demand the area be immediately evacuated upon the initial spill, and ring 000 to bring in specially trained Hazmat Professionals to deal with the situation. (That would have been the professional thing to do.) Instead, you let this situation escalate by doing nothing.

 

So in the legal fraternity, the Public Liability lawyers get the month off, and the courts get filled with the Environmental Lawyers.

 

Where does it all end ????????????

 

(If I couldn't sleep before opening this, I certainly can't now)

Give it a rest...it was tomato sauce which is probably 20% salt, anyway and you are worried about adding more salt to it?

 

What are you? A Greenie or some other environmental radical?

 

And what's wrong with more lawyers, anyway?

 

Kaz

 

 

[turboplanner]

If I was doing a reno by myself and someone broke in to my house and electrocuted themselves, common sense says that my liability should end at the point where I locked the front door.

The reason I put these cases up is to help people understand how the law works.

As far as people being held responsible for their actions, that's contributory negligence, and may well play a part in a case.

 

However you have a duty of care to protect someone from a reasonably forseeable risk.

 

240 volt bare wires in the reno are a reasonably forseeable risk' you're probably also breaking some workplace laws if someone including yourself could brush against them.

 

Or it could be the ambulance guys who come in to treat you, or a child playing games at night, or a plumber, who has come back in his own time to check some measurements, or a thief.

 

Who it is, is secondary to what caused the injury, and there are a few cases where thieves have been injured and awarded big sums of money.

 

 

[kaz3g]

....With glider rides, we make the passengers sign a "blood sheet" agreeing not to sue and so far in Australia this has stood up to a court case. There should be more of it say I and a sign should be enough instead of a signed sheet of paper.

Indemnities are a bag of worms so I hope your club had professional assistance from one of those terrible lawyer types in drafting the form.

 

And I hope the indemnity extends the protection to committee, aircraft owners, pilots and other club members as well as the incorporated association. This is because a party’s liability may also be reduced to the extent that a concurrent wrongdoer is also liable for the loss or damage... proportionate liability legislation applies.

 

Kaz

 

 

[turboplanner]

I reckon people should at least be able to agree not to sue. For example, a woman could then have her baby in her home rural town if she wanted to.

This is a favourite wish of some, but isn't going to happen.

 

With glider rides, we make the passengers sign a "blood sheet" agreeing not to sue and so far in Australia this has stood up to a court case.

You're making the person aware of an increased level of risk, and it may mitigate your case, but isn't really going to help you if your are found to be negligent.

Which was the gliding case you are referring to? There was one quoted here a while back, but when I checked it out, the pilot won the case because he was not negligent rather than had a sign up.

 

There should be more of it say I and a sign should be enough instead of a signed sheet of paper.

Once you've been in a case where someone has done something, but in Court denies it, and you were the only witness, you'll realise the futility of that.

How do you know they saw the sign?

 

Was the sign hidden by clothing etc

 

At least if they sign, that's an indication that they know of an increased risk level and agree to some risk.

 

 

[Ron5335]

Give it a rest...it was tomato sauce which is probably 20% salt, anyway and you are worried about adding more salt to it?What are you? A Greenie or some other environmental radical?

 

And what's wrong with more lawyers, anyway?

 

Kaz

Kaz, to square things up, believe me, I'm no Greenie.

 

My response was to Turbo's post #184 where he was singing the praises of staff for acting on what he said was an unknown substance.

 

My post was to show that it can all turn to poo, even if you think that you were doing the right thing. (It was only later that he identified it as tomato sauce)

 

Even in a Supermarket, there are a few items that you would not like to mix, for fear of chemical reactions.

 

My shot at the Lawyers was that they could build a case either way on whether the staff were acting in good faith, or negligent in their actions, because at

 

#180 the substance was unidentified.

 

 

[Bruce Tuncks]

The case I was referring to was a tandem-glider jump. The plaintiff, who had signed a blood sheet, was injured and sued anyway. He won the first round.

 

Then the GFA, the parachute lot and I think RAAus contributed some big money to a high court appeal, which we won.

 

The parachutist had not been negligent , he had just done a poor landing, at least this was my impression.

 

If the flying groups had not won, it would have marked the end of glider rides for the public.

 

I really hate how fear of litigation makes us behave like we are insane. Just a few days ago, my grandkids wanted to bring a friend to the farm and my first thought was.... "what if he had a ride on the kid's dirt bikes and became a paraplegic and sued for millions?" . I should have just decided to make sure he had his mum's permission and plan to supervise them carefully.

 

 

[turboplanner]

The case I was referring to was a tandem-glider jump. The plaintiff, who had signed a blood sheet, was injured and sued anyway. He won the first round.Then the GFA, the parachute lot and I think RAAus contributed some big money to a high court appeal, which we won.

The parachutist had not been negligent , he had just done a poor landing, at least this was my impression.

 

If the flying groups had not won, it would have marked the end of glider rides for the public.

 

I really hate how fear of litigation makes us behave like we are insane. Just a few days ago, my grandkids wanted to bring a friend to the farm and my first thought was.... "what if he had a ride on the kid's dirt bikes and became a paraplegic and sued for millions?" . I should have just decided to make sure he had his mum's permission and plan to supervise them carefully.

That's much the same as the aircraft crash I was referring to; the key piece of information was that the parachutist WAS NOT FOUND TO HAVE BEEN NEGLIGENT.

So the blood sheet played no part in the matter; the plaintiff could have signed the Magna Carta, but was never going to win.

 

So don't rely on that blood sheet; if the parachutist had failed in his duty of care all that signature guaranteed was that the penalty may have been a little less vicious.

 

I've previously given the example of some cases we were involved in.

 

Case (a) A child in her father's arms was hit by a piece of clay and severely injured. The club advertising and Programme didn't have and warning, after all EVERYONE knows speedway is dangerous. The Plaintiff pointed to the Programme which advertised a "family event" and said he expected a safe night. We paid out.

 

Case (b) Fresh from having all 105 tracks around the country post safety signs at the entrance, in the spectator areas, and in the Programmes, we received an invitation to pay out $2 million due to a catch fence with a cable joint which was not to the Australian Standard (so we were negligent). We argued that we had given ample warning that motor racing was dangerous, but lost out on the grounds that we had failed to advise the public that they could sue if we were negligent. The signs and Programmes were changed to read something like "Motor Racing is dangerous, however you have the right to sue if the promoter is negligent." I checked at a speedway last year and the wording at that speedway was still pretty much the same.

 

These are not hard and fast rules; every single case has its own unique features.

 

 

[turboplanner]

I should be suing our state govt for not keeping the kangaroos off our roads....who's in? Could be a dollar in it.

I'd suggest you study Shire of Berrigan v Ballerini rather than stumbling blindly down that path.

 

 

[Bruce Tuncks]

Thanks Turbs, I really appreciate reading of your experiences , they make me sadder but wiser.

 

 

[kaz3g]

Kaz, to square things up......My shot at the Lawyers was that they could build a case either way on whether the staff were acting in good faith, or negligent in their actions, because at

#180 the substance was unidentified.

Ron, I had my tongue firmly in my cheek...and I wasn't offended at all. But I would also point out building a case each way is exactly the lawyers' jobs. They have to put their best arguments for or against and it is up to the court to decide the matter. And you might be surprised how many people want their day in Court despite their lawyer advising them to settle.

 

Kaz

 

 

[Jaba-who]

The situation behind the blood sheet waivers is that they are typically "not worth the paper they are written on". While the signer is acknowledging the sport has risks and dangers and they are signing only to say that, "Should an accident happen which is purely the result of the risks of the sport then they will accept the event and its outcome". Intrinsic to this is the expectation that the organizers are not running a secretly shoddy activity whose risks are actually generated by negligent actions of the organiser. You can't get a person to sign a waiver over negligence.

 

They are not signing to say they are giving the organizer the right to be negligent. If an event goes bad the search starts for negligent actions that nullify the signed waiver.

 

And as well, the net gets cast as wide as possible to include seemingly unrelated parties, who may have been even just tangentially involved. The more people you involve the more chance you will find somebody who did something negligent. It may have very little to do with the actual event but it can be skewed into the narrative.

 

And the depth of the pockets of the parties dictates who will be dragged in. If you have insurance, if you are a doctor or wealthy professional, for instance, and happened to be involved you will be dragged in for certain. But if you are a unemployed labourer with no assets and no money even if you were closely involved but not covered by any insurance etc you would probably be left out. No point in suing you anyway.

 

The unfortunate thing is that the outcome dictates the liklihood of having negligence found against you. There have been studies which have shown that bad outcomes skew peoples perceptions to consider even normal standard of care actions as negligent.There have been a couple of published medico-legal studies where series of events has been given to panels of experts. In one series the outcome was bad, in the other (disguised as a different event but was actually the same event) but the outcome was changed to good. There was an 85% concordance rate with the acceptance of negligence when the out come was bad and almost the exact reciprocal amount when the out come was good. The other thing that encourages finding negligence is when a child is the victim.

 

Similar studies showed the same about actions that were probably not related to the event. These showed that if there was a bad outcome then innocuous things were given importance far above their real standing. Sometimes quite tenuous miniscule possibilities were judged as being highly likely to have happened and to carry great significance whereas when similar events occurred (but when the outcome was good) the reviewers accepted that in no reasonable situation could these events actually happen and were thus of no importance in the outcome.

 

 

[Bruce Tuncks]

There was a lot who advertised how they could protect your assets from litigation. I think they were selling the services of setting up trusts.

 

I have not seen these ads in recent years. Would this ploy be successful?

 

I do know of a farm which was protected like this from a vengeful ex-wife, but have never heard of doctors using it. There is a doctor in Adelaide who has a sign on his door..." no insurance and no assets... if you don't like this, the nearest alternative practice is at..."

 

 

[Bruce Tuncks]

Turbs, in that sad case of the kid being injured by the lump of clay, I reckon the father should have removed himself and his kids when the clay started flying. The first skidding corner would have made the risk obvious.

 

 

[turboplanner]

Turbs, in that sad case of the kid being injured by the lump of clay, I reckon the father should have removed himself and his kids when the clay started flying. The first skidding corner would have made the risk obvious.

In defence of the father, while a lot of dirt, dust and gravel can be kicked up early in the night, and is quite predictable, when the clay is soft and the wheels sink down into it, providing faster cornering, quite big slices can be flicked high into the air. I saw stars one night when a piece hit me on the jaw, and worse, was sitting on a deck chair in Mount Gambier one night and got hit in the balls, which caused some hopping for a while.

 

 

[Jaba-who]

There was a lot who advertised how they could protect your assets from litigation. I think they were selling the services of setting up trusts.I have not seen these ads in recent years. Would this ploy be successful?

I do know of a farm which was protected like this from a vengeful ex-wife, but have never heard of doctors using it. There is a doctor in Adelaide who has a sign on his door..." no insurance and no assets... if you don't like this, the nearest alternative practice is at..."[/quote

 

The usefulness of trusts for this sort of protection is more limited now.

 

The trust has to be at arms length and be set up such that the major beneficeries have limited control over it. If it's obvious that it's just a firewall to save your assets from a legitimate claim for compensation then the courts have means of getting at it. I have explored the option a few times over the years but the costs of set up and running it are not small and the gain in most situations seems to be minimal.

 

The problem of relying on no insurance and no assets is that of course he has assets - his future income. The courts can award against that just as much as against current assets.

 

If he is nearing retirement age then sure not much to get - but jeez no assets? No super no savings? Where is all his life's earnings - has he got it buried in his backyard or given it to his kids ( and hope like hell they don't spend it all and kick him out or put him in the cheapest old peoples home that they can find - I've seen that a few times)

 

These days you can't work in almost any practice or hospital without insurance ( save setting up your own etc) but even then to get loans for equipment etc the banks require proof of insurance.

 

I suspect that sign may not be quite true.

The usefulness of trusts for this sort of protection is more limited now.

The trust has to be at arms length and be set up such that the major beneficeries have limited control over it. If it's obvious that it's just a firewall to save your assets from a legitimate claim for compensation then the courts have means of getting at it. I have explored the option a few times over the years but the costs of set up and running it are not small and the gain in most situations seems to be minimal.

 

The problem of relying on no insurance and no assets is that of course he has assets - his future income. The courts can award against that just as much as against current assets.

 

If he is nearing retirement age then sure not much to get - but jeez no assets? No super no savings? Where is all his life's earnings - has he got it buried in his backyard or given it to his kids ( and hope like hell they don't spend it all and kick him out or put him in the cheapest old peoples home that they can find - I've seen that a few times)

 

These days you can't work in almost any practice or hospital without insurance ( save setting up your own etc) but even then to get loans for equipment etc the banks require proof of insurance.

 

I suspect that sign may not be quite true.

 

 

[Old Koreelah]

In defence of the father, while a lot of dirt, dust and gravel can be kicked up early in the night, and is quite predictable, when the clay is soft and the wheels sink down into it, providing faster cornering, quite big slices can be flicked high into the air. I saw stars one night when a piece hit me on the jaw, and worse, was sitting on a deck chair in Mount Gambier one night and got hit in the balls, which caused some hopping for a while.

Years ago an eye specialist inspecting my eyes (from across the room thru an awesome lens) asked if I'd had a eye injury in my mid teens. He could see the scar made by a ricocheting air rifle pellet at our local show. The operator saw the incident and pretended not to notice. That was in the days of toughen up and carry on.

 

 

[turboplanner]

Driver jailed for five years - the risks of carrying passengers.

 

This bus crash into a low bridge was deemed to be the responsibility of the driver as against the bus company or Vicroads.

 

I'm not sure but it's possibly the same as flying into cloud or hitting a power line or tree while low flying.

 

S4528.pdf

 

S4528.pdf

[Bruce Tuncks]

That doctor with no insurance was on a tv current affairs show. I think the assets were in his wife's name.

 

Remember the " bottom of the harbor "schemes, where the legal responsibility was found to reside in a homeless person and the money transfer documents were in the bottom of the sea. I think they worked, at least for a while.

 

But I agree that the courts probably have the power to nullify any such schemes these days, if they are convinced the arrangement was just a ploy to work around the law. 

 

The family trust I referred to earlier had been in place for many years before the nasty wife arrived on the scene.