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Werribee Gorge Accident

Ronny

10-May-2006
12:26:50 PM

>On 10/05/2006 Chalk Free wrote:
>>If not for fear of litigation, why do we have so many captain obvious
>>warnings on things?

I never said that fear of litigation did not exist. Whether it is informed fear or not is another matter. And there can be a perfectly good reason for such warnings.

Whether its good policy or not, a common reason for the warnings is the scope of the duty of care. This is defined to include 'foreseeable' risks. You may be one of the fortunate people who are able to recognise all risks and don't ever need such things pointed out. But you can't deny that there are plenty of stupid people around. Assuming that there are such stupid people around, then it is forseeable that someone might not recognise what you would regard as a 'captain obvious' risk and might hurt themselves as a result. Therefore the duty of care extends to such people in these situations. In short, what may be captain obvious for some is not for others.

Of course the signs are there in fear of litigation. What they're trying to do is to meet the standard of care. By the same token when you drive your car on the left, or give way to some pedestrians, you do so out of fear of litigation in that if you didn't it'd be foreseeable that you might hit someone and cause them loss.

As for the common argument that increases in litigation push up insurance premiums etc, there are a couple of answers. Obviously this occurs to a certain extent - obviously if you run a business where it is fairly likely that someone may die if you're negligent your premiums are going to be more than if you are a dressmaker or something similar. That's common sense. But assume for the moment that this litigation doesn't occur - who pays for the hospital bills? Someone has to. And someone has to provide for that person's 24hr care, and for that person's kids food etc. The only other option is the government, which means tax, which means we all pay. So we have a situation where people paying massive amounts to get into a climbing gym (or whereever) to cover the insurance premiums are saying 'why should we have to pay for some idiot's problems?'. But what about the person who doesn't go to the gym - they're probably saying 'well I certainly shouldn't have to pay for it, I didn't even go there'.

The solution to this IMO is to increase the level of public funding of health and other care for injured persons. If that is done, then there will not be such high levels of pecuniary loss suffered by those that are injured, and hence insurance premiums will remain low. But this sort of thing isn't fashionable at the moment - we're all into 'user pays' which just means 'user sues'.

Whoa, who's on the soapbox now... I really should do some work. Luckily we've got a sick juror today so I've not much to do.
J

Ronny

10-May-2006
12:41:06 PM

Spot on billk.

On 10/05/2006 Bob Saki wrote:

>Well my learned friend this may just be the problem. I wont delve to far
>into this, but countries without this adversarial system seem to arrive
>closer to just findings (IMO)
>I may be generalising and I'm not comparing this to countries who observe
>Sharia Law or anything that may be view as extreme in terms of societal
>management.
>

I think that we need to be careful here not to throw the baby out with the bath water. An independent judiciary is one of the most important guarantees we have that our various legal rights will be protected and enforced. Imagine if some public servant in fear of his/her job got to arbitrate in your claim against centrelink/DIMA/Parks - who'd win then. The thing is that to have truely independent judges excludes the possibility of having an inquisitorial system. So we have lawyers to represent parties. Bear in mind though that the lawyers duties are (supposed to be anyway) first to the Court, and second to their client (which is really an incident of their duty to the Court).

I think you're right, that there are ways it can be improved (ie lawyers can be more scrupulous in the way they do their job) but I'm not convinced its the whole system that's at fault.

Right - I think I've doubled my monthly posting quota - I might now return to lurking for a bit.

Dalai

10-May-2006
12:48:05 PM

On 10/05/2006 Ronny wrote:
> By the same token when you drive
>your car on the left, or give way to some pedestrians, you do so out of
>fear of litigation in that if you didn't it'd be foreseeable that you might
>hit someone and cause them loss.

Can't say I have EVER thought of fear of litigation when driving!

Road rules are put in place to try and standardise behaviour when doing something which has potentially fatal consequences to yourself and others, which would be the reason for driving on the left and giving way to pedestrians...

kieranl

10-May-2006
12:57:06 PM

One thing is that private health insurance doesn't usually cover the cost of rehab, particularly residential rehab. Public residential rehab is good but the environment is pretty grim and, guess what, no rehab on weekends.
Private residential rehab is the domain of TAC, workcover and the seriously wealthy. Basically people with serious injuries that need long-term rehab are going to look at where they can get the money to afford the care they need so that is going to drive people who get seriously injured climbing to litigation. This is what is driving all the little warning signs that Parks are posting around the place. We all know walking off a track and over a cliff edge is not a good idea but they have to make it clear that they have discharged their responsibility to warn us.


Chalk Free

10-May-2006
1:38:40 PM

I think I'm starting to get it now. The warning on the knife that says Sharp you could cut yourself is there for the moron who doesn't realise a knife is for cutting. Without the warning they may say I wasn't told it might cut my finger off, so it's not my fault. I need to sue so that I have money to pay the surgeon to sew it back on.

I drive on the road and on the left because it makes sense. Traffic flows better, less accidents, less hold ups, purely for selfish reasons really. Not because if I don't I might get sued.


Eduardo Slabofvic

10-May-2006
2:02:45 PM

Ronny

10-May-2006
2:33:32 PM

On 10/05/2006 Chalk Free wrote:

>I drive on the road and on the left because it makes sense. Traffic flows
>better, less accidents, less hold ups, purely for selfish reasons really.
>Not because if I don't I might get sued.

Yep. And one of those annoying 'hold-ups' would be if you ran someone down and had to stop, or hit some other car, or had to go to court and defend yourself against a negligence claim.
Likewise the company that sells the knife would rather not bother with too many spurious cases to defend, so it 'covers its ass' by adding the captain obvious warning. It is entirely selfish.

The point is just that within whatever factual situation you're talking about, people always do things to avoid foreseeable risk to others, and the associated problems for themselves should that risk be realised. Hence the knife warning.


billk

10-May-2006
2:36:43 PM

Making just a tiny segue, while bascially staying on topic:

Does anyone else see a disaster brewing for the Beaconsfield from the money that's about to be thrown at it?

Here's a prediction that I hope proves wrong:

The two survivors and the wife of the guy killed get paid big bikkies by Eddie Everywhere or someone equally odious to tell their stories. They then find themselves in the middle of a community that's doing it hard because the mine is shut down temporarily or permanently for safety reasons. The laid-off who have to present themselves to Centrelink each fortnight start slagging off the three nouveau rich families, saying they got too much money thrown at them over a matter of chance, while the guys who worked their arses off to save them got sweet FA.

My advice would be to go on Denton, where there's no appearance fees.

However, I do draw some hope from the picture of Todd Russell and Eddie at the pub. Looks like Todd's thinking: "What a wanker."


Chalk Free

10-May-2006
5:48:41 PM

Ronny, thanks for the debate. You have confirmed what I already thought. That there is no longer personal resposibility and that mediocrity is rewarded. No longer do I have to switch my brain on and look after my own wellbeing. If ther is no warning then its all 100 % safe and nothing can happen to me.

Don't agree with it, got no choice but to accept it.

Ronny

10-May-2006
5:55:30 PM

Fair enough. You're prob right about how things have changed. What's interesting is that in theory there hasn't been any change in the legal principles, but these changes occur nonetheless.

Maybe legal principle (and lawyers) are less important than I think...

It's been fun...

J

One Day Hero

10-May-2006
7:25:39 PM

My problem with the whole thing is that a culture of "safety" defers accidents to other times and locations.
Gyms now have fixed gri gri's and double tie ins, so people get to the crag confident but unskilled and have their accidents there.
Araps is getting "sanitized"; no more rigging belays, no more scrambling in gullies, no more testing fixed pins. People will now go to more serious areas without having learned essential skills, and the accidents they used to have at araps will go with them.
Kids grow up without sharp or hard objects around. They don't have to worry about falling or slipping or looking or thinking.

We are breeding a generation of softc--ks!


TinaLight

10-May-2006
7:34:59 PM

> We are breeding a generation of softc--ks!

What a pity ;)

BoaredOfTheRings

10-May-2006
7:51:28 PM

On 10/05/2006 One Day Hero wrote:
> Araps is getting "sanitized"; no more rigging belays, no more scrambling
>in gullies, no more testing fixed pins.

Dont stress it, ACTUP is on the crusade of the right, banishing the Euro consummer climbing ethic.

Funny how chalk free thinks that people on this thread should look after themselves, but on the rap point thread thinks safety should be taken care of for them??????????


Chalk Free

10-May-2006
8:34:30 PM

On 10/05/2006 BoaredOfTheRings wrote:
>On 10/05/2006 One Day Hero wrote:

>Funny how chalk free thinks that people on this thread should look after
>themselves, but on the rap point thread thinks safety should be taken care
>of for them??????????

Interesting interpretation. My beef here is not with safety, but the sueing culture.

I don't believe I ever said climbers safety should be looked after for them by installing abseil points, just that sometimes the installation of them increases safety. People should still look after themselves, abseil points/bolts have been known to fail. Thus should be inspected before use.


Robb

10-May-2006
8:59:57 PM

good debate. Nice essays ronny. It's good to know how the legal system and lawyers supposed to act. Ronny's a lawyer so is understandably standing up for the legal system and lawyers - someone has to I guess, because I for one have lost complete faith in lawyers and the legal system (I never had much to begin with).-
------Take some responsibility or stay at home and get fat then sue McDonalds. One less junk food outlet in the world couldn't do any harm.----------
cheers
R
-

Bob Saki

11-May-2006
9:35:30 AM

On 10/05/2006 Chalk Free wrote:
That there is no longer personal resposibility and that mediocrity is
>rewarded.

welcome to "everyone's a winner" world. I mean they even make ribbons for people finishing last in events.


kerroxapithecus

11-May-2006
3:14:39 PM

On 10/05/2006 beefy wrote:
>good debate. Nice essays ronny. It's good to know how the legal system
>and lawyers supposed to act. Ronny's a lawyer so is understandably standing
>up for the legal system and lawyers - someone has to I guess, because I
>for one have lost complete faith in lawyers and the legal system (I never
>had much to begin with).-

I think the legal system has good foundations but there are lots of people working in it that shouldn't be and they have way too much power and little understanding of the reality of some people's lives. Many of them come from privileged backgrounds. The law of negligence is one area that was ok and now is stuffed and the big winners are the insurance companies. Now they get the increased premiums and don't pay out much. I don't think lawyer's are sticking up for lawyers but for injured people. I'm not a negligence lawyer (bloody should be seeing I'm so passionate about it) but I can see that the public has been misinformed about the issues.

>------Take some responsibility or stay at home and get fat then sue McDonalds.
>One less junk food outlet in the world couldn't do any harm.----------

Why is it right/moral/heroic? to take responsibility for the negligence of a wealthy corporation or authority that has the money to provide safety measures and didn't? I'm not talking about unfortunate mistakes or accidents but outright negligence.

Get fat and sue McDonalds - Very interesting. Obesity is all about economics isn't it? Con the punters into eating more and make more money. They get fatter and then they keep thinking they need so much food. It's a vicious cycle. People could get by eating about a tenth of what they eat. But that wouldn't keep the food outlets going would it? Yes people should take responsibility but people are also vulnerable in the face of constant advertising and the pace of society. But eating McDonalds and then suing is an extreme example of what we're talking about here and I can't see a person winning such a case. Definitely contributory negligence there.

Cool debate.

kieranl

11-May-2006
8:49:36 PM

On 10/05/2006 One Day Hero wrote:
> Araps is getting "sanitized"; no more rigging belays, no more scrambling
>in gullies, no more testing fixed pins.
That's just mindless jingoism
"no more rigging belays" -
You aren't going to avoid rigging belays unless you restrict your self to a small subset of single-pitch climbs at Arapiles. I can't think of any easy multi-pitch climbs that have fixed anchors at all belays.
"no more scrambling in gullies" -
I don't think that's been eliminated though personally I'd prefer people to abseil down a rockface rather than erode a gully. I choose to abseil down the Watchtower Faces even though it is slower than going down the gully descent because descending via the gully will cause more erosion.
"no more testing fixed pitons" -
Pardon??? The only way to effectively test fixed pitons is to hit them with a hammer! In over 30 years of climbing I have not carried a hammer while leading at Arapiles. I have pulled pitons out with my fingers, stuck them back in (with my fingers) and climbed on. I could actually do without that style of testing.

earwig

11-May-2006
9:37:44 PM

So ... does anyone know if someone is really sueing Parks Victoria or not?

patto

11-May-2006
10:54:25 PM

On 10/05/2006 Ronny wrote:
>
>>On 10/05/2006 Chalk Free wrote:
>>>If not for fear of litigation, why do we have so many captain obvious
>>>warnings on things?
>
>I never said that fear of litigation did not exist. Whether it is informed
>fear or not is another matter. And there can be a perfectly good reason
>for such warnings.
>
>Whether its good policy or not, a common reason for the warnings is the
>scope of the duty of care. This is defined to include 'foreseeable' risks.
> You may be one of the fortunate people who are able to recognise all risks
>and don't ever need such things pointed out. But you can't deny that there
>are plenty of stupid people around. Assuming that there are such stupid
>people around, then it is forseeable that someone might not recognise what
>you would regard as a 'captain obvious' risk and might hurt themselves
>as a result. Therefore the duty of care extends to such people in these
>situations. In short, what may be captain obvious for some is not for
>others.
>

The problem with lawyers is that they think like lawyers. (No offense, intended but if you have studied law you probably know what I mean.)

Your arguments make plenty of sense to a lawyer, however most laypeople have a much less pedantic and more common sense notion of duty of care. If you apply the notion of 'duty of care' broadly and if you assume a stupid population then of course your going to have captain obvious warnings.

The problem is that people sometimes neglect their own duty of care to themselves. And then they look to blame somebody else. Driving is one of the most dangerous activities people do yet even very stupid people can normally handle a car. The fact that cars are not plastered with 'DO NOT' stickers indicates that in some cases we do place duty of care where it belongs, on the individual.

While an improved health system is great, the issue isn't about the health system. The issue is about personally responsibility. People have been getting hurt in personal accidents for centuries and they will continue to get hurt for centuries more. What has changed in recent times is the blame game and people failing to take responsibility of their actions.

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