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Werribee Gorge Accident 16-May-2006 At 5:35:44 PM Ronny

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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