Public Liability

[turboplanner]

You don't get , do you.? I know what the legal requirement is, I just strongly believe that, a lot of laws in this country have it backwards. As usual, they removed the responsibility from the person actually at fault, and made some else responsible for the stupidity. We will never go forward as a nation, while you can sue someone else for you stupidity.Yes, it was a nasty occurrence, but any fool could see that coming a mile away, but the legal outcome is f#cked up.

Whatever happened to being responsible for your actions?

The person at fault, the person who allowed a girl to get on a quad bike with a flat tyre, no brakes, and no helmet was judged to have (a) owed a duty of care to the girl and (b) breached that duty of care. That's the way the law has been since 1932.

The Court made him responsible for his actions.

 

The only thing which has changed is that in the mid 1980's governments had finally had a gutfull of financing the reckless and stopped paying out on their behalf, and has made them foot the bill for their own stupidity. No one can argue that it's too expensive to pump up a tyre or fix the brakes on a quad bike.

 

 

[M61A1]

I never argued that it was too expensive to fix the quad. I said the state of the legal system and those that believe it to be just, is just hideous. Where is her responsibility? Sure, if they could prove that she was mentally incompetent, and she was in his care, there might be a case ( in my world), but no, she was supposedly a normal functioning human, that did something stupid, and now her and her family blame someone else. These sort of cases and outcomes are taking us down a very dangerous path. Nothing for our legal profession and judges to be proud of.

 

 

[turboplanner]

I never argued that it was too expensive to fix the quad. I said the state of the legal system and those that believe it to be just, is just hideous. Where is her responsibility? Sure, if they could prove that she was mentally incompetent, and she was in his care, there might be a case ( in my world), but no, she was supposedly a normal functioning human, that did something stupid, and now her and her family blame someone else. These sort of cases and outcomes are taking us down a very dangerous path. Nothing for our legal profession and judges to be proud of.

The girl was judged to be the innocent party otherwise there may have been a partial judgement or a settlement out of court.

She might have been stupid in your opinion, but that wasn't the way it was judged, and the way it was judged is in line with previous cases, including one where a plant operator was killed in Melbourne decades ago because his employer gave him a machine with defective brakes.

 

These sort of cases are putting the blame exactly where it belongs, and sure they're dangerous for the people who don't want to carry out their duty of care, but the beauty of the system is they are the ones who pay.

 

 

[REastwood]

The girl was judged to be the innocent party otherwise there may have been a partial judgement or a settlement out of court.She might have been stupid in your opinion, but that wasn't the way it was judged, and the way it was judged is in line with previous cases, including one where a plant operator was killed in Melbourne decades ago because his employer gave him a machine with defective brakes.

These sort of cases are putting the blame exactly where it belongs, and sure they're dangerous for the people who don't want to carry out their duty of care, but the beauty of the system is they are the ones who pay.

The point M61A1 I think is making is that its the Judgement - i.e. the Judges, that are screwing up this country by laying blame 100% on employers. It may be in line with previous cases but that doesn't make it right.

 

Not knowing the details of this incident my comments will be generic:- The only way that an employer can be fully responsible for the accident is if the employee was forced or coerced into operating the machinery, i.e. employee: "I'm not riding that quad, it's dangerous!", employer: "If you don't then you are fired!".

 

The legal system has to balance "Duty of Care" with "Duty of responsibility", the employee or private citizen also has a "Duty of Care" to act responsibly and show care for their own wellbeing. If we keep going down this path of blaming everything on the Corporate/Employer/Wealthy entity and nothing on the individual/employee/poor then no one will want to employ people, no one will build/construct/manufacture anything and the companies and wealthy will all move to a country that has some common sense.

 

 

[M61A1]

To attempt to clarify, Turbs.

 

I understand that it has been judged that way, and that's the path our legal system is going down....what I am sayings is....in my opinion it has poorly dealt with and my opinion of our legal system and those who are abusing it is not likely to change, until we get some sort of equilibrium where the actual person responsible is held accountable.

 

I think RE above explains it much better than I.

 

 

[turboplanner]

The point M61A1 I think is making is that its the Judgement - i.e. the Judges, that are screwing up this country by laying blame 100% on employers.

I know exactly the point M61A1 is trying to make, and if you look back you'll see him taking the same line previously, but it's only going to take him to grief. The system will take care of him through his own pocket.

The Judges are not laying blame 100% on employers; if you study the cases, or if you are involved in any as I've been you'll realise that the claimant has to prove negligence, so is on the back foot from the start.

 

I've seen many cases fail, with no compensation paid, and most are settled out of court without any blame being apportioned.

 

The point of showing you this judgement, is that your PL cover now needs to cover single of multiple cases of $12 million - about double what it used to be.

 

It may be in line with previous cases but that doesn't make it right.

If you want to pull the judgement in this case apart, you'll first need to get the transcript and read the arguments; M61A1 has disingenuously inferred the girl might have been brain damaged or stupid. She only needs to be an innocent member of the population. If she had been a champion trail bike rider, or even had been an experienced farm hand woth an ATO for quad bikes, the case may have gone a different way.

 

Not knowing the details of this incident my comments will be generic:- The only way that an employer can be fully responsible for the accident is if the employee was forced or coerced into operating the machinery, i.e. employee: "I'm not riding that quad, it's dangerous!", employer: "If you don't then you are fired!".

In the transport industry we now have Chain of Responsibility laws, so that if that exchange took place and the employee was subsequently injured, there would be a criminal charge.

An employer can be fully negligent, and even if you take someone for a ride, and decide to do some sightseeing below 5oo feet you can be fully negligent. That's decided on a case by case basis.

 

The legal system has to balance "Duty of Care" with "Duty of responsibility", the employee or private citizen also has a "Duty of Care" to act responsibly and show care for their own wellbeing. If we keep going down this path of blaming everything on the Corporate/Employer/Wealthy entity and nothing on the individual/employee/poor then no one will want to employ people, no one will build/construct/manufacture anything and the companies and wealthy will all move to a country that has some common sense.

Those factors are taken into account in each case; as I mentioned earlier, we are not talking about a change here which might entice people to move to another country; the basics haven't changed, the negligent are just getting bigger news coverage.

 

 

[turboplanner]

To attempt to clarify, Turbs.I understand that it has been judged that way, and that's the path our legal system is going down....what I am sayings is....in my opinion it has poorly dealt with and my opinion of our legal system and those who are abusing it is not likely to change, until we get some sort of equilibrium where the actual person responsible is held accountable.

I think RE above explains it much better than I.

Let's assume you are not a civil engineer.

 

If you decide to innocently walk out on to a jetty or over a bridge, and the owner of that bridge has been saving money by not replacing bolts as they rust through, and the last, critical bolt has just rusted through, then how is that your fault?

 

You're just an innocent member of the public who decided to go for a walk.

 

 

[facthunter]

That's probably a good example. Great big potholes in highways are another. You are entitled to expect a standard, but on the fringe, like swimming in crocodile and shark infested waters, a warning sign should be enough. Isn't that why we are REQUIRED to have placards prominently displayed on the dashboard of RAAus Aircraft? You could put one at the Base of Mount Everest where even experts die . That place now has got to the stage where it's a critical and climbers are a danger to each other, so maybe rules and some control are needed, rather than lawyers apportioning blame according to LAW and your ability to fund your case. "WE have deeper pockets than YOU'. Oft stated as a warning. Your access to legal redress shouldn't be determined by your cash reserves, but in the real world it is. Nev

 

 

[M61A1]

Let's assume you are not a civil engineer.If you decide to innocently walk out on to a jetty or over a bridge, and the owner of that bridge has been saving money by not replacing bolts as they rust through, and the last, critical bolt has just rusted through, then how is that your fault?

You're just an innocent member of the public who decided to go for a walk.

Point= Missed

Big difference between walking along minding your own business, and choosing to use a machine that you knew was unserviceable, without any safety equipment.

 

If you cant see a difference.... that might explain a few things.

 

 

[turboplanner]

That's probably a good example. Great big potholes in highways are another. You are entitled to expect a standard

I agree; the Shire of Wentworth case was a good example - they had failed to put up a "curve" sign.

"but on the fringe, like swimming in crocodile and shark infested waters, a warning sign should be enough. Isn't that why we are REQUIRED to have placards prominently displayed on the dashboard of RAAus Aircraft?

 

The warning sign is to advise the unwary that there is an increased level of risk. You can still be sued if you are negligent though.

 

I previously gave two examples, one where we lost a case after a spectator's daughter was injured and the spectator claimed the club had advertised the meeting as a family event. We then put "Motor Racing is Dangerous on all advertising, programmes etc and were sued a couple of years later after a sprint car broke through a catch fence. We argued we had given a warning, but lost because the cable had let go at a join, and the two cables were not joined in accordance withy the Australian Standard (we had a duty of care, with safety equipment to follow all laws and standards, so we were negligent).

 

With your crocodile signs, the tourists were stealing them, so the local council placed the signs on poles out in the water; that made it worse; the Europeans were wading out to have their photo taken next to the pole.

 

You could put one at the Base of Mount Everest where even experts die .

The Courts look at skill steps, so this is quite different to an innocent girl being offered a ride on a quad bike.

 

 

rather than lawyers apportioning blame acing to LAW and your ability to fund your case. "WE have deeper pockets than YOU'. Oft stated as a warning. Your access to legal redress shouldn't be determined by your cash reserves, but in the real world it is.

Yes, but that's on both sides. Public Liability lawyers may offer a no win no fee service, but you have to pay all the costs, and there's no guarantee you'll win. As a defendant you have no option. No one's saying the law is fair.

[turboplanner]

Point= MissedBig difference between walking along minding your own business, and choosing to use a machine that you knew was unserviceable, without any safety equipment.

If you cant see a difference.... that might explain a few things.

I explained the difference in #156

 

"If she had been a champion trail bike rider, or even had been an experienced farm hand with an ATO for quad bikes, the case may have gone a different way."

 

If the girl had had enough experience to know the quad bike was unserviceable, and that a helmet was required, the same as a two wheel motor bike, then she may not have had a case.

 

 

[Bats]

Insurance companies must be becoming very twitchy around quad bikes; watch them start setting exclusions and/or declining to insure properties that use them. Had one up the road, where a friend of a family member lifted the keys from a farm office and took a quad for a jolly without the owner being present or aware. Ramped a dry dam wall and broke his back in the subsequent landing and promptly sued. As happens all too frequently, insurers settled on the basis that nothing is certain in litigation and if their defence fell over it was going to get expensive. Obviously the settlement amount was a lot less than the court would have awarded, but still substantial. Property owner and all the rest of us copped it in the renewal and the legal fraternity got just a little bolder in financing the next, no-win-no-fee matter that came through the door.

 

 

[turboplanner]

Quad bikes had 22 fatalities in 2015 roughly double RAA but with far more participants, so it's worth keeping an eye on what is happening to them.

 

The recent decision which virtually forces every owner to fit a roll cage and seat belts if they want to keep their farm is one example to watch

 

This one is another.

 

No 1 or 2 on the Worksafe death tally is farms, and the link I posted from the lawyers tells us that 2/3 of those deaths are from quad bikes.

 

Some groups just produce more statistics than they should, so it's natural they'll receive attention, and create patterns.

 

 

[facthunter]

Tractor hydraulics and creeping with non mechanical (hydrostatic) drives feature too. A quad bike is innocuous enough except when you want to see what it will do and do high speeds. Brake cables rust up and on saline soils, a lot of things jamb up and take a bit of fixing. Driven carefully they don't need brakes (almost). Like some aeroplanes on grass. Nev

 

 

[2tonne]

with quad bikes there are a huge number of serious injuries in addition to the fatalaties. A friend of mine rolled his quad and has now had seven reconstructive surgeries on his face. He is recognizable now, but still has at least one surgery to go. In-laws are farmers and refuse to get a quad bike, they know others who have been seriously injured also.

 

 

[M61A1]

I explained the difference in #156"If she had been a champion trail bike rider, or even had been an experienced farm hand with an ATO for quad bikes, the case may have gone a different way."

If the girl had had enough experience to know the quad bike was unserviceable, and that a helmet was required, the same as a two wheel motor bike, then she may not have had a case.

This the whole problem, there are people like yourself who for some reason see this out as justifiable, as RE pointed out earlier, if the farmer hade threaten her if she refused , maybe there should be a case, honestly, if you are an adult, and capable of paid employment, it stands to reason that you shouldn't be so so stupid that you overlook such basic safety. It would appear that the worst the farmer is guilty of is scraping too close to the bottom of the barrel when employing people.

The case also mentioned by Bats, where the quad was stolen and still gets paid out, is the sort of thing people in this country should be screaming about....it's plain wrong, and every time someone hands some git a few dollars for their own stupidity, it sets a precedent for someone else to follow.

 

You seem to think that I don't understand how the system works....I understand how it works, what I'm trying to tell you is that I think the way it works is utterly disgusting. It's just my opinion of our completely screwed up legal system and the scum that drive this kind of litigation. I am painfully aware that my opinion will change nothing about this pox on our country. I know I could be sued by some moron and his "no win- no fee" lawyer who won't take responsibility for their own actions, I just believe it to be wrong, and I wouldn't let anyone who thought that these processes are ok, on my property.

 

As for your comment about parallels to RA, how? We are not paid employees, we choose to fly for fun, we are not allowed to be used for hire or reward, unless you are a paid instructor, however, part of being a pilot is being competent at inspecting your aircraft for serviceability, so if, as an instructor, you can't competently do that, what use are you?

 

 

[turboplanner]

This the whole problem, there are people like yourself who for some reason see this out as justifiable

MOST people have now moved on, practice risk management, and cover themselves with PL insurance.

 

You seem to think that I don't understand how the system works....I understand how it works, what I'm trying to tell you is that I think the way it works is utterly disgusting.

I know you know how the system works, I referred to that earlier.

 

As for your comment about parallels to RA, how? We are not paid employees, we choose to fly for fun, we are not allowed to be used for hire or reward, unless you are a paid instructor, however, part of being a pilot is being competent at inspecting your aircraft for serviceability, so if, as an instructor, you can't competently do that, what use are you?

If you stopped the ranting and did some reading, you'd realise that duty of care is not confined to employers.

I gave you a flying example above; if you, as in an RA pilot, take a passenger up and decide to do some sighteeing below 500 feet, you have breached your duty of care.

 

 

[M61A1]

When I read more about it, the only thing I feel is rage. Partially because we have magistrates and judges who seem to think they've done well, also because of lawyers who essentially only do this because there's a dollar in it, because her scumbag mother made such a ridiculous claim in the first place, and mostly because we, as a society, don't rally against decisions like this, we roll over and accept it without realising the damage that is being done.

 

Then we have people who have wallowing in this garbage so long, they can't see how much it stinks.

 

Worst of all is that I have to live in the cesspool that is made, this crap affect mine and everybody else's freedom.

 

 

[Bruce Tuncks]

The system is insane and making us all poorer. It has certainly increased unemployment in rural areas, where people are justifiably afraid of employing anybody. Insurance is not the answer. It is expensive and many people, including me, don't trust an insurance company to protect them.

 

What is needed is for the government to do the occupational health and safety stuff at no cost or risk to the employer. The OH&S training could be done while on newstart. Then the most you would need to do against an employer would be to protect a worker who correctly refused to do anything unsafe. Workplace injured would be taken care of by welfare, and the employer would be safe from losing his farm.

 

But we insist on following this insane path which enriches a few lawyers but makes unemployment worse and limits production. We should all blame our local members for this sorry state.

 

 

[turboplanner]

What is needed is for the government to do the occupational health and safety stuff at no cost or risk to the employer.

We had that, and you South Australians brought it to an end with the deaths of two children at a South Australian kindergarten.

 

The OH&S training could be done while on newstart.

No reason why not, a person coming to a farm should be qualified to use farm equipment, identify farm hazards.

 

Then the most you would need to do against an employer would be to protect a worker who correctly refused to do anything unsafe.

What you are talking about there is probably culpable negligence, where the farmer would be charged with manslaughter because he knew that what he was doing was wrong.

Go and have a read of the various comments on Donoghue v Stevenson, and you'll find that lawsuits for negligence is usually for something you forgot to do, like put a cover over, or barrier around a trench, provide a sefty harness for the hayshed,put the guard back on the post driver etc.

 

And it doesn't have to be an employee; it can be a neighbour who has come over to help you with hay carting.

 

Workplace injured would be taken care of by welfare, and the employer would be safe from losing his farm

The "I stuff up and you all pay method" has worn thin with too many people. Last time I checked, farms were the most dangerous workplaces; that's what has to change.

 

But we insist on following this insane path which enriches a few lawyers but makes unemployment worse and limits production. We should all blame our local members for this sorry state.

If you breach your duty of care and that results in someone becoming a quadriplegic, you pay, so one solution, which I advocate, is to remove the risk.

For example, at hay baling time in the south east, we used to have a truck and trailer in the paddock, with two people on top of the hay and two pitching the bales up.

 

We loaded the truck and trailer up to about the 3.5 metre height, had to use a ladder to get down.

 

Back at the hay shed it all happened in reverse until the hay stack got higher than the truck and trailer, and then we used a bale loader up to about the 4.5 metre level.

 

At feed out time someone would climb up the side of the stack to start, and throw the bales down to someone on the truck.

 

We never had a load come apart, and no one ever fell, but plenty did; one of the locals was castrated by a star picket, and some died.

 

Today, with the Falls fron Heights legislation set at 2 metres without railing or a harness, you couldn't take the risk doing that.

 

Most people have just walked away from small bales; but found they actually get better productivity in hay handling with the bigger round or square bales, and have elminiated the risks at the same time.

 

It's a matter of not putting someone at risk of an accident.

 

 

[Bats]

Seems we're talking at cross purposes; an interpretation of the law as it stands vs outrage at what the law has become. Personally, as with much of our aviation law, I'd as soon see us adopt the NZ approach to personal injury rather than the bastardised, US centric morass we are digging ourselves into. Unfortunately society being what it is, we have become all too accustomed to "compo" as some magical balm to sooth hurt. Truly amazing just how unlucky some people can be once you start digging....

 

 

[turboplanner]

Well, we live in Australia, so picking the system used in NZ, or even better, Liberia, is pointless, because people who don't understand their responsibilities under the law are going to get clobbered by it.

 

This case gives us the opportunity to top up insurance, and learn a little more about duty of care.

 

 

[Bats]

Ah I tried, we seem to have an incurable case here.

 

 

[turboplanner]

I learnt my lessons through losing cases; you're welcomne to start down that track if you wish.

 

 

[Bruce Tuncks]

Turbs, the way society is headed will eventually self-correct via the price of food. But it will be a slow and painful process I reckon.

 

For a long time, people will blame the wrong things, for example they will say the high price of food is due to wicked farmers. But this will be after our time and there is nothing we can do about it.

 

In the meantime, we can complain about the price of electricity which is surely due to wicked power companies.

 

I'm pleased to see that you actually got some cases to court. My experience with lawyers is that they did nothing, and then when you rang them to ask what was happening, you copped another $1000 bill for the phone call.