ELAAA post on facebook...

[old man emu]

What if:

 

1. I relied on the experience I had gained over many years of diagnosing malfunctions in machines to show competence in identifying the cause of the squeak?

 

2. I relied on the experience I had gained over many years of diagnosing malfunctions in machines to show competence in identifying the method of eliminating the squeak?

 

3 I relied on the experience I had gained over many years of using lubricants to show competence in using lubricants?

 

4. Did I choose the most suitable lubricant for the task?

 

5. Was the most suitable lubricant available to me? 

 

6. I followed the manufacturer's instructions for the use of the lubricant, or if those instructions were not available, used "best practice"?

 

Do I have to prove, on the balance of probabilities, that the child suffered the injury as a result of exceeding the designed safety limits of the playground equipment?

 

Can I involve the Council and/or equipment manufacturer who failed to post legible signage describing the designed safety limits of the playground equipment, and warning of the danger of exceeding those safety limits?

 

 

[aro]

What if:

 

1. I relied on the experience I had gained over many years of diagnosing malfunctions in machines to show competence in identifying the cause of the squeak?

 

...

 

You don't get to run the case, you hand it over to the insurance company. They don't want to bet their money on your experience. In our case (I assume typical for a relatively small case) I saw no evidence that the PI lawyers or the insurance company actually left their offices to investigate facts, it was all done by letters and phone calls.

 

The PI lawyer wants the insurance company to look at the list and say "Can we refute ALL of those allegations? We're not sure, better not risk it, lets settle."

 

It all changes of course for a large case like Turboplanner's of course, but they are the minority.

 

In reality you probably don't have much to worry about because the PI lawyers would rather go after the council, because they almost certainly have a bigger insurance policy.

 

 

[onetrack]

The laws and decisions relating to liability have become so idiotic today, that more than one clown who dived into the ocean or a river, and struck his head on the shallow bottom, thus causing him to become a paraplegic, was able to successfully sue the local council that controlled the area, for not posting signs warning of the dangers of diving into water, without checking its depth.

 

Yet, many others have also tried to sue for the exact same event, and lost, with other judges declaring that it was "reasonably foreseeable that they were indulging in dangerous activity, and that contributory negligence was evident".

 

I fail to understand the thought processes behind the decision-making and outcomes such as the above cases where the litigants were successful.

 

I tend to the belief that the law delivers decisions according to hair-splitting over wording, and it often fails to deliver common-sense justice decisions. 

 

https://www.redlandcitybulletin.com.au/story/3101502/council-estate-agency-cleared-of-straddie-cliff-fall/

 

https://www.abc.net.au/worldtoday/content/2005/s1299219.htm

 

https://www.smh.com.au/national/paraplegic-gets-1m-for-diving-mishap-20050319-gdkylx.html

 

https://www.smh.com.au/national/paralysed-swimmer-ordered-to-pay-1m-20030315-gdgfhj.html

 

 

[turboplanner]

Do you think so? Lets write this up in the style of a personal injury lawyer. Remember they don't have to prove anything unless it goes to court, even then the standard is "balance of probabilities" i.e more likely than not it happened - much lower than the standard in e.g. a criminal trial.

 

The PI lawyer doesn't want to go to court. They want to convince the insurance company that they also do not want to go to court, they would rather settle. So the PI lawyer builds a list as long as they can of points they would require the insurance company to argue against in court.

 

The Defendant sprayed lubricant on the swing. The Plaintiff slipped and suffered injuries due to overspray of lubricant on the chains.

 

As a result of the Defendants actions in applying lubricant to the swing, they owed a duty of care to users of the swing.

 

The injuries to the Plainiff are a result of the negligence of the Defendant.

 

Particulars of Negligence

 

The Defendant:

 

• Performed maintenance on the swing without authorization
   
  
• Performed maintenance on the swing without adequate training
   
  
• Performed maintenance on the swing without adequate materials
   
  
• Failed to take adequate care when performing maintenance on the swing
   
  
• Used an unapproved lubricant on the swing
   
  
• Used spray lubricant on the swing resulting in overspray on the chains
   
  
• Failed to prevent overspray settling on the chains
   
  
• Failed to clean overspray off the chains
   
  
• Caused the swing to be in a dangerous condition
   
  
• Caused a danger to the Plaintiff 
   
  
• Failed to warn the Plaintiff that the chains were slippery
   
  
• Failed to warn the Plaintiff that the swing was dangerous
   
  
• Allowed the Plaintiff to use the swing when it was in a dangerous condition
   
  
• Failed to notify the council that the swing was dangerous
   
  
• Failed to notify the council that the swing required maintenance
   
  

 

etc.

 

I can pick 13 items there which would probably be irrelevant to any discussion, but I don't hink we should keep these theoretical cases going because without legal supervision there will be enough mistakes to confuse people. What people should do is spend about the cost of an hour's instructional flight with a Public Liability lawyer and go see him/her with a list of the things you do when you fly which you're not quite sure of.   We actually partnered with an Insurance Company, so we saw the calculations and strategies from the inside, so I got to see the reasons they settled out of Court when they did, but that's of no interest to the average Insured Pilot who simply wants to know that he/she will be covered in the case of an accident. If you do ave an accident, you'll get an up front and personal insight into how not to do it again without affecting your insurance cover anyway.

 

 

[turboplanner]

The laws and decisions relating to liability have become so idiotic today, that more than one clown who dived into the ocean or a river, and struck his head on the shallow bottom, thus causing him to become a paraplegic, was able to successfully sue the local council that controlled the area, for not posting signs warning of the dangers of diving into water, without checking its depth.

 

Yet, many others have also tried to sue for the exact same event, and lost, with other judges declaring that it was "reasonably foreseeable that they were indulging in dangerous activity, and that contributory negligence was evident".

 

I fail to understand the thought processes behind the decision-making and outcomes such as the above cases where the litigants were successful.

 

I tend to the belief that the law delivers decisions according to hair-splitting over wording, and it often fails to deliver common-sense justice decisions. 

 

https://www.redlandcitybulletin.com.au/story/3101502/council-estate-agency-cleared-of-straddie-cliff-fall/

 

https://www.abc.net.au/worldtoday/content/2005/s1299219.htm

 

https://www.smh.com.au/national/paraplegic-gets-1m-for-diving-mishap-20050319-gdkylx.html

 

https://www.smh.com.au/national/paralysed-swimmer-ordered-to-pay-1m-20030315-gdgfhj.html

 

The first case you quoted above is very similar to one we discussed on the thread Public Liability, where a person successfully sued the Shire of Berrigan after diving into the Murray River, which has probably been there for 400,000 years. That sounded crazy to me, but when you read the transcript it all falls into place. You word "controlled" indicates it might be similar. If you take over ownership of something like a swimming hole, you have a duty of care to ensure it's safe.

 

There are many shades, degrees, interpretations in these cases and it takes about a decade to become a lawyer, so we aren't going to come to grips with complex situations where both sides in Court each were negligent in varyiong degrees relating to different things.

 

I've often had the same criticsm as you,  that decisions are not always the moral ones, and don't always make sense, but after about 20 years in the lower level VCAT environment where you don't have to be a lawyer, you quickly learn the importance of working to specific definitions, case precedents etc. and after a while it all makes sense. 

 

 

[kgwilson]

Getting back to the original ELAAA post & the aircraft register, it would be beneficial to have all aircraft on the VH register as it is easier to identify VH registered aircraft on the radio with 3 alphas compared to 4 numerics usually abbreviated to 2 pairs of numerics. Also in theory it would be a 1 off registration with no annual fee with the tradeoff of having your details on a public register. This can all be easily modified by software fields to separate various types though. GA & RA aircraft in NZ are all on the ZK register. I don't know about charges though as there are at least 2 RA organisations that issue RA licences there. Whether there are any plans or not, personally I think all  non commercial aircraft GA & RA should be under 1 umbrella with training & maintenance requirements determined by classes or types.

 

 

[old man emu]

Well, to kill the PL discussion stone dead, it's obvious that Turbo has identified the correct course of action I should take:

 

Failed to notify the council that the swing was dangerous (due to wear on the swing attachment bolt bearing, as evidenced by the squeak)

 

 

[pmccarthy]

I would use the four dog defense:

 

1. First of all, I don't have a dog.
    
   
2. And if I had a dog, it doesn't bite.
    
   
3. And if I had a dog and it did bite, then it didn't bite you.
    
   
4. And if I had a dog and it did bite, and it bit you, then you provoked the dog.
    
   

 

[Bruce Tuncks]

There was a farmer near Langkoop in western Vic who employed a young worker . This worker ceased coming to work, and a lawyers letter arrived saying how the worker had injured himself by attempting to lift something heavier than he should have. All the sort of reasons as per the swing oil were appended.

 

The claim was for his wages till he was of pensionable age, some millions I guess.

 

Personally, I don't think the worker would have won in court, but we will never know, because the farmer had a breakdown from the worry involved and has not said a coherent word since.

 

I don't think the farmer's estate was sued.  This whole story has made me afraid to employ any help.

 

 

[turboplanner]

There was a farmer near Langkoop in western Vic who employed a young worker . This worker ceased coming to work, and a lawyers letter arrived saying how the worker had injured himself by attempting to lift something heavier than he should have. All the sort of reasons as per the swing oil were appended.

 

The claim was for his wages till he was of pensionable age, some millions I guess.

 

Personally, I don't think the worker would have won in court, but we will never know, because the farmer had a breakdown from the worry involved and has not said a coherent word since.

 

I don't think the farmer's estate was sued.  This whole story has made me afraid to employ any help.

 

I'd suggest you check the facts.

 

 

[fly_tornado]

I'd suggest you check the facts.

 

where is the fun in that?

 

 

[Bruce Tuncks]

Why Turbs?

 

Do you think that this story is impossible? If so, why?

 

I do admit it is not first hand, but why would it be impossible?

 

And how would you advise a potential employer to behave so this didn't happen to him?

 

 

[turboplanner]

Why Turbs?

 

Do you think that this story is impossible? If so, why?

 

I do admit it is not first hand, but why would it be impossible?

 

And how would you advise a potential employer to behave so this didn't happen to him?

 

I know most of the farmers in Langkoop and the type of work they do.

 

It would be very unusual for a farmer not to be aware of the falls from heights legislation, and maximum safe lifts; after all they have switched from small bales to round bales and from cereal bags to bulk bins and hydraulics do the  work these days.

 

I lift gates, machinery parts, an overturned plough etc with the front end loader these days.

 

My family dozed down a shearing shed and built a new one with the board at standing heighht for the rouseabouts etc.

 

Farmers like everyone else carry public liability insurance so any discussion on a claim is between the insurance company and the claimant.

 

Will the exception of the inevitable 3-5% bad eggs that are in any basket of humaity, they don't need external advice on something they are not likely to instigate.

 

 

[Jim McDowall]

Farmers like everyone else carry public liability insurance

 

Turbs, I think this should read "Farmers like everyone else SHOULD carry public liability insurance". Maybe the farmer to whom Bruce refers to, couldn't make the premium for whatever reason.

 

 

[turboplanner]

Turbs, I think this should read "Farmers like everyone else SHOULD carry public liability insurance". Maybe the farmer to whom Bruce refers to, couldn't make the premium for whatever reason.

 

A good function at the Langkoop Hall might bring 40 people; they all talk.

 

 

[onetrack]

The OH&S problem, with its related complaints of excessive bureaucracy, progress-slowing procedures, eye-watering OH&S infringement penalties, and litigation leading to massive payouts, is simply a problem of all participants not understanding the processes involved.

 

Now, before I go on, I can tell you this much. I have a stepdaughter who is a senior OH&S manager for an oil and gas company, and she operates in the Moomba region. 

 

In a previous life, I have been a part owner and managing director of a large family earthmoving and mining contracting business. I was involved in writing up the company safety manuals.

 

We started out in 1964 with just the brother and myself and one machine, and ended up, 30 years later, with an average of 65 employees, 55 major items of equipment, ranging from 50 to around 100 tonnes in weight, and operating as W.A.'s largest family-owned mining contracting business in the mid-1990's.

 

The mining industry is one of the worst examples of "safety gone mad". But if you saw the stupid, risk-taking behaviour of many mining, and oil and gas industry employees, you might begin to understand how the OH&S regulations, rules, and procedures have become so extreme.

 

On the other side of the coin, farmers are notorious for a complete lack of regard for safety and good procedures. I have had farmer clients when I was an agricultural contractor, who killed themselves in horrible accidents, due to a total disregard of basic safety procedures.

 

One farmer killed himself by using a front end loader with an automatic transmission, to lift sides into place on his truck tray.

 

He was working alone, without advising anyone, in a remote location. He backed the FEL away from the truck, and left it idling in gear, while he walked into the area between the truck tray and FEL to tighten the bolts holding the sides in place.

 

The FEL, still idling in gear, without any handbrake applied, crept forward, and pinned him between the truck tray and the FEL bucket. His wife, the only person who would normally have come looking for him, was away in the city for a week.

 

It took him a week to die, in the most agonising form of death I could imagine. His death was totally preventable by very simple obedience of some very simple safety procedures.

 

Another farmer client killed himself by "jump-starting"a large 4WD farm tractor, standing in front of the drive wheels, whilst doing so.

 

He failed to carry out the basic check of ensuring the transmission was in neutral, and positioning himself in a high-risk, danger zone.

 

The engine started rapidly, the tractor roared off, and he went under the wheels. The incredible part is, he was of mature age, and should have known better.

 

The bottom line is, a practical interpretation of a good safety approach, simply-written manuals, coupled with audits and good, straightforward training, backed up by a good PL policy, is all that is needed, to ensure compliance with OH&S regulations, and to ensure safe work practices.

 

The OH&S enforcement agencies should, ideally, be primarily, educational - and secondly, only punitive, when severe and repeated infringements of regulations and procedures are encountered.

 

Some individuals have a, "they're not going to tell me what to do", approach to the OH&S part of their business operations - when they should be co-operative, and encouraging safety authorities to give them advice and education, as to how to improve their safety training, manuals, and procedures, to reduce injuries and fatalities, and to protect themselves against litigious claims.

 

As an aside, in the 30 years I was in the family business, we never incurred a major injury (in a heavy industry that is notorious for injury and death), and only incurred one fatality.

 

How did that fatality occur? We had a young, keen employee, a great lad, who simply failed to wear his seatbelt when driving one of our Hiluxes - against his safety training.

 

He drifted off the bitumen (obviously due to a lack of attention) on a local, wide highway, in the middle of a fine, clear day.

 

He hit a wooden white guidepost, which broke in half - and one half came out from under the front wheel, stood up at right angles to the rear tyre tread - whereby it punched a massive hole through the tyre, deflating it instantly.

 

He went to swerve back onto the sealed section of highway, once he realised he was on the shoulder - but as he pulled the steering wheel to the right, the totally-deflated left rear tyre caused a rapid and massive oversteer effect, which sent the Hilux broadsiding across the highway at 110kmh.

 

With no seatbelt to hold him, the result was entirely predictable. The Hilux rolled twice, he was ejected through the passenger window, and hit the road head first, breaking his neck instantly.

 

Such a total and unnecessary waste of life, and such an entirely preventable accident. But there was no fault on our part as his employer, he failed to obey safety instructions.

 

 

[jetjr]

Theres plenty of nasty accidents but the issue with WHS regulation is would it have prevented the accident?

 

On farms and single person operations likely not.

 

Normalization of risk is a big problem - where people don't appreciate how dangerous a short cut or activity is.

 

 

[onetrack]

jetjr - OH&S laws and regulations are not designed to totally prevent accidents. They are rules "for the guidance of wise men, and for ignoring by the foolish".

 

Here's another local example. This is a true, actual "job accident" event. My best mate (John) is a semi-retired fitter and turner.

 

He's a very professional machinist and workshop operator, and managed to get to 70 without killing himself, or losing a number of fingers, because he's had extensive safety training in workshop procedures, and is generally, a careful operator.

 

He moved from the city to the bush in S.W. W.A., and becomes friends with a farmer nearby (who just also happens to be an enthusiastic RA-Aus flyer, and an instructor as well, as I understand). I won't reveal his name, because I'm sure some members of this forum know him. Let's call him Fred.

 

This farmers profession is actually accountancy, he took over the family farm in his late 30's after his Dad died suddenly, and his Mum pressured him into coming back to the farm.

 

Fred's a nice bloke, I like him - but I consider that his farm management and farming skills still have a lot of gaps.

 

I would say that's largely due to a lack of professional or "on-the-job" farming training.

 

He employs my mate to do some repair and maintenance work around the farm. John is an excellent "hands-on" repairer, he starts to bring every run-down mechanical item on the farm, up to scratch.

 

One of the jobs John is instructed to do, is to fix the door tracks on the fertiliser shed. This shed is a very tall shed, with a set of two bi-fold doors.

 

That is, the doors slide on tracks, but they are hinged in the middle as well, so they fold up and take up less space.

 

Bill has gone away on business, and John sets up (on his own), to fix the door tracks. He has a very big stepladder to get up to the tracks, 4 metres above a concrete floor.

 

He figures out the wind is blowing from the SW, so he needs to tie the doors back against the wind. He does this, and he's satisified he's made the job safe.

 

But - remember, John is a workshop man, he's received no training in operating in a rural or outdoors environment.

 

Bill has done exactly zero to give him any job training, advice, or to provide any safety manuals. You can see where this is going.

 

John climbs 4 metres up the ladder, and commences work on the door tracks. Suddenly, and with no warning, the wind reverses direction and increases in speed, with a heavy gust.

 

But because John has only tied the doors back in one direction, against (what he thought) was the prevailing wind, the doors move, suddenly and sharply.

 

This movement dislodges the ladder, it falls to the concrete floor, and John follows it down, landing on his side on top of the ladder, on the concrete.

 

John shatters his left femur (upper leg bone) and his left elbow, as he tries to save himself. Luckily, he still had his mobile phone within reach.

 

Drifting in an out of unconsciousness, and with barely any phone signal strength, he takes 2 hours to raise help.

 

The end result for John was extensive surgery, a full-length steel pin in his femur, a steel plate and screws in his elbow, and about 4 months in a wheelchair and another 3 months on crutches. It's 12 months before he's back to anywhere near full strength.

 

But here's the kick in the story. Upon arrival at hospital, John is asked whether he was working for Fred as an employee, and was it a jobsite accident, or was he just working as a friend with no renumeration involved.

 

This is important for the Hospital, because if it's a jobsite accident, it's a workers compensation claim, and a report and records have to be forwarded to Worksafe.

 

But John is fearful of "getting Fred into trouble" - so he tells the Hospital staff he was just working as a friend for Fred.

 

Right here is where John is making a stupid choice, and the whole safety system is being derailed. John gets no workers compensation payments for his serious loss of income while he's recuperating.

 

It would have made no difference to Fred, he already pays workers compensation insurance premiums as part of his farming operations.

 

But, as my stepdaughter explained to us, if John had reported the accident as a workplace accident, Worksafe would have investigated, Fred would have been educated in the safety areas, brought up to speed on safety training procedures, be shown how to write up safety manuals, be shown how to carry out safety audits, and generally have his farming operation "smartened up", as regards employee safety.

 

As it turned out, Fred was largely unaware of his insurance arrangements, and what he was even covered for. He was relying on his insurance broker to "look after all that".

 

Fred probably had a half-decent PL policy, but he was unaware of what it could have covered. He failed to make himself familiar with any of his insurance policies.

 

If John had received advice that he could have sued Fred for damages under his PL policy, he could have sued Fred (without malice) and received a payout for his injuries. Insurance companies are there, just for that purpose.

 

Fred would probably have ended up with higher insurance premiums if John had got a payout on his PL policy, but that would be Freds punishment for not ensuring that his OH&S was up to scratch, and for failing to become familiar with insurance policies.

 

As it stands, the accident has not been recorded as an industrial accident, when it should have been, thus distorting overall statistics, and also leaving the accident out of the OH&S database, when it could have provided another example for an education and training session.

 

 

[jetjr]

Workcover consider Fred totally responsible for that accident and he'd likely prosecuted, his premium would be substantially increased so next year he hires only cash only workers or does it himself. (premium is paid as % of declared wages)

 

Increased regulation drives people to ignore more than just the issue being regulated against.

 

We could be discussing CASA too

 

 

[onetrack]

It is NOT a certainty, that Fred would have been prosecuted. Worksafe (W.A.) have both Prosecution and Enforcement policies that are reasonably clear.

 

A prosecution is commenced only when it is in the public interest, where it can be proven that there is a substantial degree of negligence and culpability, and where there is repeated bad behaviour, that is blatantly flouting OH&S laws and regulations.

 

The Commissioners delegate has to ensure that a prosecution has a substantial degree of a likelihood of success, before initiating it.

 

In Freds case, where his OH&S failures were merely laxity and a degree of poor management, I would opine that he would have escaped prosecution, but would have been issued an enforceable undertaking, or an improvement notice, to show that he had improved his approach to OH&S regulations, training, and manuals. 

 

Fred probably wasn't even aware of, or been familiar with the Worksafe Code of Practice. Worksafe would certainly have made him aware of it.

 

A fairly sizeable number of industrial accidents in W.A. do not result in prosecution. Only in the worst cases, where serious injury or death resulted from substantial non-compliance, or repeated offending, has prosecution been carried out. Where an employee has contributed to his accident, is also reason not to prosecute.

 

Worksafe Prosecution policy - https://www.commerce.wa.gov.au/worksafe/prosecution-policy

 

Worksafe Enforcement policy - https://www.commerce.wa.gov.au/worksafe/worksafes-enforcement-policy

 

 

[turboplanner]

Workcover consider Fred totally responsible for that accident and he'd likely prosecuted, his premium would be substantially increased so next year he hires only cash only workers or does it himself. (premium is paid as % of declared wages)

 

Increased regulation drives people to ignore more than just the issue being regulated against.

 

We could be discussing CASA too

 

It's time you studied today's situation instead of confusing people with scenarios that no longer apply, if they ever did.

 

Sure there will always be a small percentage who don't pay their takes and don't take their responsibilities, and they are the ones Workcover can look at more closely.

 

 

[jetjr]

Why doesn't it apply today? was there some change to regulation?

 

He is clearly negligent allowing someone without training or skill to do the job unsupervised and there was an accident

 

if it were a small number of non compliant individuals it wouldn't be a problem

 

As with a lot or regulations it written with a large business size in mind with resources to defend themselves