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Werribee Gorge Accident


kerroxapithecus

13-May-2006
9:25:08 PM

I guess it's up to IceScrew to reveal his source. Would be an interesting case to follow if it's really happening. A climbing case is what's needed to find out the law's position. Although this seems to be unrelated to climbing if it was a fall on a path.

Dalai

14-May-2006
11:15:56 AM

On 13/05/2006 kerroxapithecus wrote:
>On 13/05/2006 patto wrote:
>>If it was a tree in a park that the drunk climbed and fell off, then
>does
>>then should the council be liable for not ensuring a soft landing around
>>all trees?
>
>The duty of care would not be the same. The installation of the playground
>is an invitation to play/climb. I don't think there is a regulation that
>states there should be a soft landing around trees. A tree is not an invitation
>to climb like the playground is.

Sorry kerroxapithecus. But if the tree is still on Council property, then the Council is still responsible.

Case in point - back in the 90's child falls from tree in the Doncaster Municipality (Melbourne) and successfully sued the council. It was because of this accident climbing was banned in Doncaster Park. A small quarry which has an small bouldering section and an okay traverse. Also some higher walls, which were used by Doncaster High School for Toproping for quite a few years prior with no accidents.

earwig

15-May-2006
9:24:32 PM

Question - If someone is wheeled into a courtroom asking for damages resulting from their own stupidity, the court will:
(a) say sorry, but you're stupid and the fact that the damage to your willie means you can no longer reproduce is a positive for society
(b) give 'em the money because they feel sorry for them.

If the courts answered (a) these people would be stuffed for the rest of their lives, and have to live off government hand-outs (your taxes) so the courts always answer (b) and the people live off your taxes via an insurance company.

Not much of a difference really.

earwig

15-May-2006
9:36:18 PM

Government agencies and local councils all have insurance and like any insurance there will be an excess amount they have to pay before the insurance company chips in - maybe the first $5,000 or $10,000. Any claims under the excess are unlikely to be contested as it would generally be cheaper to pay than go to court. Now, before everybody runs off suing the national parks for $5000 because they tripped over a rock, remember that if there are too many small claims it becomes much easier and cheaper to install a keep out sign.

rod

16-May-2006
4:44:06 PM

Scenario : I've had an epic climbing a multi-pitch route, summit after dark and have to walk off with no means of illumination. I can't see the sign in the dark and trip over on the path, injuring myself. I argue the case in court that it was reasonably foreseeable for people to be walking in the park after dark so the standard of signage is inadequate. The park authority loses for not providing well lit signage...and the cog turns another notch in favour of more ineffective regulation. My point is if the law continues down the current path the regulations/controls will become ever more absurd.

Ronny et al : the tort law surrounding negligence isn't an stupid in many contexts. However, "The People" don't have sufficient influence within a non-direct citizen initiative democratic system to affect change by statute on issues which are minor for the majority. Do us all a great service with the law and provide a test case that can be cited by councils, park authorities...people have to accept personal responsibility in nature situations, its what going to parks is all about.


billk

16-May-2006
5:04:16 PM

Wasn't there a case in the NT of a pissed idiot stumbling over a cliff in the dark, suing the park authorities to compensate for his injuries and having the court find against him? That might provide a useful precedent.

rod

16-May-2006
5:07:43 PM

depends whether drunkeness was the basis of their finding against the pissed idiot.


IdratherbeclimbingM9

16-May-2006
5:15:53 PM

Here is an example of bureaucracy gone feral ...
Heh, heh, heh.

E S
Loved the lawer jokes ...


billk

16-May-2006
5:18:23 PM

Can anyone else remember this case? (BA was it written up in Argus 4 or 5 years back?)

I think that the judgement was that any reasonable* person would have been able to take adequate care to avoid injury in this place; that no warning signs were necessary to alert any reasonable person to the potential hazard. Accordingly, being pissed was relevant insofar as it temporarily rendered the plaintiff to be not a reasonable person.

*Not sure if that's the term lawyers use in cases. The one's in my office certainly write in the abstract about "the reasonable person", who may or may not be riding on the Clapham Omnibus.

Ronny

16-May-2006
5:35:44 PM

This is what I tried to post yesterday. See below re standard of care in response to the post about the well lit sign.
J

On 12/05/2006 patto wrote:
>On 12/05/2006 Ronny wrote:
>>On 11/05/2006 patto wrote:

>Lawyers always go on the defensive when their system is attacked, rather
>than considering solutions they concentrate on denying the problem. Again,
>no offense intended, in fact in many ways it is justifiable considering
>the amount of shit lawyers get.

None taken - I'm happy to be the target of everyone's lawyer hate. Edwardo - keep the jokes coming.

I'm really not trying to go on the defensive here Patto. The trouble I have with all of these type of discussion is that people are apt to lump the whole thing in the 'problem with the legal system' basket, and forget about it. That has occurred on this thread already plenty of times. But that is not constructive. By addressing exactly what is the cause of the problems you identify we might get somewhere towards addressing the issue. Money grabbing lawyers are probably one of the problems, but they are definately not the only one - so my point is to think through this, avoid generalising (the single greatest impediment to any sensible debate on Chockstone IMO), and to identify the real issues.

>On one hand you say that it isn't the legal system's fault, if people
>don't like it they can change it through parliment. Then on the other
>you say that the legal priciples haven't changed. It is clear things can
>change within the legal system without parliment led action, thus law isn't
>just in the hands of the 'people'.
>It is clear to everyone things HAVE changed. You have said the legal
>principle haven't changed. Thus it is the judicial/jury rulings that have
>changed. That is why people blame the legal system.

I'm not sure that I'd even go so far as to say that the judicial rulings have changed. Sure - more people/companies are being held to account for damage caused. That might reflect a number of causes - greater access to lawyers for injured people, greater need for compensation, favourable rulings by judges. The 'legal system' is the site of all these changes, but its players are not necessarily their sole cause.

>But lets forget the blame game. It is the culture of blame that has caused
>the problem in the first place. We need to ask is there a problem, why
>has it occured, and how to fix it.
>

Yes

>I believe there is a problem and as I have argued earlier I believe it
>exists because the broad extent of duty of care, and the fact that all
>foreseeable risks are considered.
>

This is where I interject with some legal principle, and most people either stop reading or just think 'stupid nitpicking lawyer'. But it needs to be said, because what you've said is incorrect.

There are two questions. 1. Is there a duty of care. (works as you say). 2. What is the standard of care?
The second question is where we say 'well, what should be done about this foreseeable risk?'

So re the council example. Its patently unreasonable to expect councils to provide perfectly flat footpaths everywhere at all times. Its perfectly reasonable to expect people to take some care. So, the council will meet the standard of care required of it if does what is reasonable to ensure that the footpaths are ok. If they left a 1m trench in a footpath, unmarked, in the shade of a tree on a busy footpath, that probably would not meet the standard of care.

So once again, generalising has got us nowhere.

> From a commonsense perspective this seems silly
>but from a legal perspective it makes sense.

I really don't think that what I've set out above seems silly from a common sence perspective.

I'm going to pass on the playground debate - but just note that debating the outcome of hypothetical situations is not going to identify the real issues. What you're saying is that there are factors that weigh in favour of liability, and factors that weigh against. No one could refute that, and the outcome will depend on the facts of a particular situation.

>I think I rambled a bit too much, I hope it makes sense. My point is
>that in the incidents that we are objecting to, it is usually because the
>law has failed to take into account that the primary duty of care lies
>on the individual.

I understand where you're coming from, but I don't think that's necessarily the issue. The law has always recognised that. Hence the concept of contributory negligence.
I think what we all differ on is not necessarily the principles themselves, but what is 'reasonable' in any given situation. (That is pretty much what the legal principle boils down to). Judges may have tended in recent years to think it is reasonable to require too much care of corporations/people , or reasonable not to require sufficient care of individuals.

Oh, on the issue about changing the law (which I correctly had assumed would be met with some scorn by people):
People all too often think that lawyers can just change the law whenever they like it. That is not the case. The idea of the common law is that it develops in a principled fashion, where principles set down by previous decisions are followed. Decisions of higher courts regarding points of law are binding on lower courts. This isn't all just for fun - if it were not the case people could justifiably say 'this isn't really law at all, its just whatever whim the judge feels like today'. And it is fundamental to such a system that parliament is supreme - legislation overrides the common law. You can play down your part in parliament as much as you like, but the fact remains that everyone is as much responsible for them being there as anyone else. (whether you voted or not) So if there's a sufficient groundswell of public opinion that either the common law or old legislation needs to be changed, the parliament, and only the parliament, can do it.

BTW, does anyone know much about the negligence system in New Zealand? I don't, but I hear its much different to here, and supposedly much better. Maybe that presents a solution.

J


Zebedee

16-May-2006
6:36:44 PM


ShinToe Warrior

16-May-2006
6:47:23 PM

^^ Is that sign in the previous post warning not to top out when deep water soloing?


Eduardo Slabofvic

16-May-2006
7:43:36 PM

What looks good on a lawyer?


tmarsh

16-May-2006
9:11:28 PM

> What looks good on a lawyer?

A dead town planner's skin?

rod

17-May-2006
2:42:54 AM

On 16/05/2006 Ronny wrote:

>There are two questions. 1. Is there a duty of care. (works as you say).
> 2. What is the standard of care?
>The second question is where we say 'well, what should be done about this
>foreseeable risk?'
>
>So re the council example.

Ronny: a business/customer or a council play ground situation is less than relevant to the national or state park context given that the park authority is destined to defend the park's assets. If park authorities are to maintain a stance of permitting public access, what legal liability shields would you suggest to a park authority against negligence claims? Could they simply post a sign on the road/path at the park entrance and absolve themselves of the inherent risks of nature to park visitors? If so, are they required to pursue the Aussie, English and American tradition of trying to document on the sign itself EVERY possible activity which could lead to grief?


Eduardo Slabofvic

17-May-2006
12:17:47 PM

On 16/05/2006 tmarsh wrote:
>A dead town planner's skin?

Now now tmarsh, let's stay focused. The correct answer is “a Rottweiler”.


Eduardo Slabofvic

17-May-2006
12:20:49 PM

I don’t know any more lawyer jokes, but here’s one about a dead engineer.

The dead engineer goes up to Heaven and meets God out the front. God checks his list and says,
“Hmmm an engineer, hey. We normally take engineers in here, but we’re a bit full at the moment, so you’ll
have to go down stairs”.

So the engineer heads off down into Hell only to discover that it’s not very nice down there. It’s really hot
with molten lava all over the place, and it stinks of sulphur, and there’s all these condemned souls
screaming all the time.

So the engineer thinks, I’m on to this, and sets about fixing Hell up. Some raised walkways over the lava
pits, some cross ventilation, and on it goes.

6 months later, God rings up the Devil for their bi-annual teleconference. Towards the end of the
discussion, God says, “Hows that engineer getting along that I sent down there a while ago?”.

The Devil says,” Oh just great. He’s really fixed this place up, we’ve got escalators, sound proofing, air-
conditioning. He’s even built me a computer so that my paper work doesn’t bust into flames. He’s really
got this place to be quite nice.”

God says,” That sounds fantastic. We could do with some work like that up here. You’d better send him
back up.”

“No way”, says the Devil. “It was your mistake sending him down here in the first place, so you live with
it.”

God doesn’t take this lying down and replies, “Look, you better send him up straight away or I’ll sue”.

“Oh yeah!” says the Devil. “Where are you going to get a lawyer from?”


Sabu

17-May-2006
7:39:15 PM

^ lol
good one!!


JamesMc

17-May-2006
8:26:30 PM

Arriving home from O/S today, I found some junk mail in my letter box from an organisation called Peoples Rights (unemployed plaintiff lawyers???) who are campaigning to reverse the tort law reform of a few years ago. These people want to make it easier for idiots to sue someone for their accidents. They are asking people to write to Steve Bracks, which I actually did, but I don't think I said what they were hoping for.

Anyway, their web site is http://www.peoplesrights.com.au (that's peoples rights to get compensated by someone else when they fall over).

I'd urge everyone to drop Braksey a note at http://www.premier.vic.gov.au/your_say.asp and let you know what you think.

In the context of the current discussion, it doesn't matter if someone sues Parks because they fell over. It only matters if they win, or if Parks roll over to avoid publicity.

Cheers

James Mc

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