Chockstone Forum

      Sponsored By
      ROCK
   HARDWARE

Chockstone Photography

Australian Landscape Prints

Chockstone Forum - Accidents & Injuries

Report Accidents and Injuries

Topic Date User

Werribee Gorge Accident 12-May-2006 At 9:58:32 PM kerroxapithecus

Message

>On 12/05/2006 Ronny wrote:
if people don't like the
>>law they can change it - through parliament.

good luck!

>On 11/05/2006 patto wrote:
>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.

Patto, you're doing a good job for one of these 'normal' people who don't think like lawyers and your argument would be a good one for the defendant. I don't think it would be fair if there was no avenue to nut out the issues and to just have someone give an overriding decision that in all cases the primary duty of care rests on individuals. Could we really say that's a type of democratic legal system? A trial is simply a way of bringing out the evidence and determining the real story. Yes our system is adversarial in contrast to civil law systems which are inquisitorial. Therefore a lawyer must argue the case for their client and use the law to forward their client's case. They are an advocate. I do see this as a fair system when used appropriately and not unethical seeing all citizens have a right to a fair hearing.

In your example of the drunk who fell off the children's play equipment ask yourself what is the greater evil - going out getting drunk and playing in a public playground or installing a playground in a manner that is against safety regulations? Another important question relates to the balance of power and which party is more able to prevent the damage. It seems to me that the drunk (probably young person) was not doing anything extraordinary and the council was doing something against the law. How many times has the average person become intoxicated and sat in a public place or climbed on a fence or similar? Who suffers the greatest from the failing of the council to meet the regulations? Why install a public playground and not meet the regulations? A sober child (or adult) could just as easily have suffered the same fate. Was the damage caused by the drunkedness, or the lack of depth of the surface bark? Actually that's what this case comes down to......causation. If the plaintiff can show the spinal injruy was caused by the negligence they win (as long as the other parts are proven too). ....That the injury would have been unlikely if the proper surface was in place.

Say you do apply the duty of care to the injured drunk. Do you also apply reasonable foreseeability? If so do you reasonably foresee that all around the place there are dangers because regulations haven't been met? eg. you fly on a plane and you reasonably foresee that the airline didn't do the mechanical checks? My arguement (if you can make sense of all this) is that we should be able to exist and go about our business with a pretty high level of confidence that someone is doing their job.

I agree that we now have much safer workplaces and public places which is a positive outcome of all of this. Afterall what's worse ...having more fatal and permanent injuries in the community or having to pay higher premiums? How ethical is our thinking? Are we more interested in our hip pockets or the general safety and wellbeing of our fellow citizens? What's the cost to the community of incapacitated people???

Re the lawyer jokes.....depends.
I don't like police or footballers but I guess there might be a few who are ok. :)