legal Responsibilty

Submitted: Sunday, Jun 05, 2005 at 10:16
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Hi Folks. I am not sure exactly how your laws work in Aussie but in NZ the OSH ( Occupational, Saftey and Health ) are starting to become a bit of a problem for some fo the land owners that let us use their land for 4x4 club runs as they are responsible for persons on their land, but with carefull wording of disclaimers they can but absolved from this.
Another problem is for trip leaders, as they in general are the front truck and say drive a hill and the second truck has an accident the leader is responsible as he has indicated it is OK by demonstration.
Thids type of thing is becoming a problem for club trips, and we are looking for alternative planning to put the responsibility on the individual for his own actions.
How do your clubs get around this problem.
Ray
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Reply By: Mike Harding - Sunday, Jun 05, 2005 at 11:00

Sunday, Jun 05, 2005 at 11:00
>Another problem is for trip leaders, as they in general are the
>front truck and say drive a hill and the second truck has an
>accident the leader is responsible as he has indicated it is OK
>by demonstration.

So if the leader drives over a cliff and the others follow, can they sue and win?

I doubt it. There is a large element of personal responsibility in these situations, if I'm driving a Humvee and leading a trip then the 2nd in line in his Rav 4 would be expected to, reasonably, understand he cannot do what I can.

Certainly we have become far too litigious and very silly with it - but I'm buggered if I'm going to start living my life on the basis that I have to consult a lawyer before I do almost anything.

Mike Harding
AnswerID: 114419

Follow Up By: Swine Hunter - Monday, Jun 06, 2005 at 04:23

Monday, Jun 06, 2005 at 04:23
I agree with you Mike, a reasonable person must assume responsibility for their own actions.

Cheers
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Follow Up By: mattandlana - Monday, Jun 06, 2005 at 13:11

Monday, Jun 06, 2005 at 13:11
Mike and Swine Hunter,

I agree with you whole-heartedly, but see point 2 of my post below. What price principle?

Matt
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Reply By: Utemad - Sunday, Jun 05, 2005 at 12:50

Sunday, Jun 05, 2005 at 12:50
I don't know about other clubs but in ours you are responsible for your own vehicle. If someone is talking you through a difficult section or whatever and you damage your vehicle then it is your problem not theirs.

You are told that when you join and it is in the membership info that you sign. I doubt it has been tested in court but I hope it never comes to that.
AnswerID: 114425

Reply By: Nudenut - Sunday, Jun 05, 2005 at 13:13

Sunday, Jun 05, 2005 at 13:13
clubs get around it by carrying their Liability Insurance indemnifying landowners when club members are own privately owned land doing sanctioned club activities even though it may not be a club event on the day...
such i am a member of a fishing club and we need accees via private land...this can happen on any day and the landowner is indemnified against members injurying themselves and eg leaving a gate open and landowners stock gets out
AnswerID: 114427

Reply By: Lone Wolf - Sunday, Jun 05, 2005 at 13:31

Sunday, Jun 05, 2005 at 13:31
I am getting the impression, that the pendulum, may start to swing the other way, in the not too distant future. The federal government, with it's ever increasing university fees, will eventually, make it unattractive, for young people, to train to become lawyers. They will instead, be persuaded to become trades people, and the country will again, be run on an even keel. The lack of hungry lawyers, will make it increasingly harder for stupid litigation cases to ever get to the courts.
This may be a pipe dream, but if we all cast our minds back, to the beginning of European occupation of this country, and how we just simply got on with the job, and how we surged forwards, without all of this rubbish, you can see, that we are now being blinkered and bound, from any further progress.
One thing, which makes me still smile, although I am not at all in favour of it, is the yearly highlight telecast, of the Running Of The Bulls, in Spain. Can you imagine, even trying to fill out an application form for that, here in Australia? So much for the bronzed tough anzac......

I do believe, that we do need laws, to protect people, but some people, just simply cannot be protected from themselves. We are all paying for their inept ability to see that a little foresight, can save them from impending grief.

Maybe if these events had a rider, that was rock solid, saying, that you CANNOT sue us, even if you die, then the dumb people, the ones who don't have CDF, won't come along.

I'm runnin' out of oxygen up here, on my soapbox......

Wolfie
AnswerID: 114428

Follow Up By: robak (QLD) - Monday, Jun 06, 2005 at 13:46

Monday, Jun 06, 2005 at 13:46
Wolfie

The pendulum may be swinging the other way, but not by the scrapping of old laws, but by making more new laws. Therefore more laws = more lawyers = more costs.

R.
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Reply By: Footloose - Sunday, Jun 05, 2005 at 15:35

Sunday, Jun 05, 2005 at 15:35
Part of the problem has been the greedy little grafters who are professional litigators. One guy I know boasts how much he got for each particular situation. He seems to think that any situation is fair game. Having a seat named after him at DSS probably didnt help any.
Shoot the lawyers and these little b^&%$#$@ will disappear :)))
AnswerID: 114439

Reply By: Nudenut - Sunday, Jun 05, 2005 at 17:57

Sunday, Jun 05, 2005 at 17:57
now now its not the lawyers fault...
as i'll explain.....

What's the difference between a catfish and a lawyer?

One's a slimy scum-sucking bottom-dwelling scavenger, the other is just a
fish.

*********************

Why are lawyers buried 10 feet underground?

Because deep down, they're really not that bad!

******************

Q: What do you have when 100 lawyers are buried up to their neck in sand?

A: Not enough sand.

they are not all hear to rip us off!?!?!? hahaha
AnswerID: 114451

Follow Up By: Muddy 'doe (SA) - Sunday, Jun 05, 2005 at 18:13

Sunday, Jun 05, 2005 at 18:13
Hahahahah,

Just why is it do you think that there are hundreds of good Lawyer Jokes around?

A bus containing 52 lawyers goes over a cliff on the way to a legal conference. Do you call it ...

a) A tragic accident,
b) A damn shame
c) A good start!

Cheers
Muddy
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Follow Up By: Toy_Hilux - Sunday, Jun 05, 2005 at 18:51

Sunday, Jun 05, 2005 at 18:51
But the problem is if it goes over with a spare seat,

d) Its a waste of space!!!!!!!
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Follow Up By: Nudenut - Sunday, Jun 05, 2005 at 18:58

Sunday, Jun 05, 2005 at 18:58
com'on guys..this is serious ..its fridees funnies
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Reply By: ev700 - Sunday, Jun 05, 2005 at 18:22

Sunday, Jun 05, 2005 at 18:22
What's black and tan and looks good on a lawyer?.........

.........A Doberman.
AnswerID: 114453

Reply By: Member - Davoe (Widgiemooltha) - Sunday, Jun 05, 2005 at 21:44

Sunday, Jun 05, 2005 at 21:44
I was under the ipression that disclaimers which you so often fill out arnt worth the paper they are written on as nothing absolves a responsable person , place, business or whatever from their duty of care
AnswerID: 114478

Follow Up By: Nudenut - Sunday, Jun 05, 2005 at 22:03

Sunday, Jun 05, 2005 at 22:03
true, one cannot sign away their rights
but you can get insurance to indemnify the other person
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FollowupID: 370371

Follow Up By: Member - John (Vic) - Sunday, Jun 05, 2005 at 22:31

Sunday, Jun 05, 2005 at 22:31
A misnomer, they are regarded as an "Acknowledgment of risk" by courts.

In the very short simple version, you are signing that you acknowledge that the "Whatever" you are undertaking has an element of risk and you acknowledge that you understand that risk, If you elect to proceed then you will have been deemed to accept that risk.

It may not mitigate the "Other" person completely but it makes it harder for you to say, "I did not know or understand what I was getting myself into". Which will then apply to points 1 and 2 below.

You have three points to prove to be able to apply liability to another party.

1. That a duty of care exists.
2. That that duty of care was breached.
3. That damage or injury resulted from breach of that duty of care.

All three of these points must be met before you could consider begining action of any sort.

These three point are in most instances very difficult to prove.

Also there has been a major attitude change in courts in regards to personal responsibility, this is shown by a number of very high profile liability damages cases in recent years being overturned on appeal or in fact thrown out very early on the proceedings.

The Gold Coast Council V the young chap who dived into the surf and broke his neck, result quadriplegic and the court said in very basic terms.
You are an adult and you have a known duty and responsibility to ensure that the water was deep enough to dive into before doing so and should not rely on the fact that warning signs may or may not exist as circumstances can and do change and it is not unreasonable for you to know that.

Not withstanding that it is a sad case for the young gent involved Its a more commonsense approach that is being taken by the courts.

VKS737 - Mobile 6352 (Selcall 6352)

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Follow Up By: Member - Davoe (Widgiemooltha) - Sunday, Jun 05, 2005 at 23:55

Sunday, Jun 05, 2005 at 23:55
This is starting to sound a bit much like a MARCSTA cours. BTW nudey Usually get my beer by the block 24 hours in a day - 30 cans to a block no coincedence just better
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Follow Up By: Nudenut - Monday, Jun 06, 2005 at 07:32

Monday, Jun 06, 2005 at 07:32
geezus, dont tell swmbo. She'll have me working an extra 6 hrs/day!
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Reply By: Kiwi Kia - Monday, Jun 06, 2005 at 07:40

Monday, Jun 06, 2005 at 07:40
Hi Ray, I think we need to make contact and I will let you know what my Club does about this (Wellington).
AnswerID: 114504

Follow Up By: Kiwi Ray - Monday, Jun 06, 2005 at 07:59

Monday, Jun 06, 2005 at 07:59
Hi Kiwi Kia.
When I get home I will make contact with you through this forum.
rotorua club have just had a meeting with OSH and DOC to try and sort out this problem and I beieve that have come up with a draft form that each person signs each day accepting that they are in charge of their own truck and ellect or not to attempt the obstacle / hazard in front of them. i will have a copy athome by the time I get there, ( end of the week ).
The other thing is to do away with a trip leader as such. Apparently a trip leader by designation is responsible, accordinng to OSH
E mail is apollo2002@xtra.co.nz
Ray
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Reply By: robak (QLD) - Monday, Jun 06, 2005 at 10:08

Monday, Jun 06, 2005 at 10:08
All states now have Volunteer Protection Acts, where volunteers are protected from claims made against them.

Basically, "A volunteer does not incur any personal civil liability for any acts or omissions done in good faith when performing community work organised by a community organisation." (Such as a 4wd club)

See here for more info

Queensland's version is the Civil Liability Act

I don't know if any of them have been tested in court yet.

R
AnswerID: 114522

Reply By: mattandlana - Monday, Jun 06, 2005 at 13:09

Monday, Jun 06, 2005 at 13:09
Some comments:

1. Yes the courts seem to be heading in a more sensible direction.
2. However, until we get there, the fact that you personally don't like the current legal position (eg Mike Harding's comments above) won't necessarily help you, so think twice before you bet your assets and financial future on a point of principle.
3. Insurance doesn't actually stop your liability, it just helps you pay for it. The importance of this is that if the insurance cover is not high enough or the insurer goes bust, you will be left exposed to the gap. This is a real risk.
4. Disclaimers certainly CAN help. Get advice on how to word it and how to get acknowledgement from the participants that they have read and agree to the disclaimer. The precise wording can be critical - don't kid yourself that you can write legal disclaimers if you're not trained in it, even if you are good with words normally. Get your association to invest a hew hundred dollars in getting advice on this.

Finally, as a lawyer (tho' I don't do personal injury plaintiff work, or any litigation) isn't it funny how all those nasty lawyers seem able to somehow find a ready supply of plaintiff clients willing to put their hand out for a massive windfall gain arising from some loss or suffering. Opportunistic greed is the problem, from BOTH the plaintiffs and their (sometimes straight, sometimes very dodgy) lawyers.
AnswerID: 114568

Follow Up By: Mike Harding - Monday, Jun 06, 2005 at 19:34

Monday, Jun 06, 2005 at 19:34
Hi Matt (I assume?)

You're a brave man (lawyer) posting to this thread :)

>2. However, until we get there, the fact that you personally
>don't like the current legal position (eg Mike Harding's
>comments above) won't necessarily help you, so think twice
>before you bet your assets and financial future on a point of
>principle.

I understand that. I once paid an expensive barrister (is there any other kind?) quite a lot of money to tell me how incorrect I was to confuse "The Law" with a concept of justice - he was quite correct, of course, and I learned from his advice.

However...

If we all sit on our bottoms and say "Oh dear I'd better not do that just in case something happens and I end up in court" then we might as well call it a day and go and live in another country and I'm not ready to that just yet (although the Politically Correct and wimpish attitude of a large proportion of the Oz population is pushing me in that direction). What ever happened to the free thinking, authority resenting Aussie who just wants to do his own thing without government interference - I think he's been a little bit neutered by the PC brigade and if we accept that then we're stuffed.

So perhaps I will end up on the wrong side of the law but it'll be because I believed it was the "right thing to do" and I think it's much more important to be true to myself than a law, often, made for the benefit of specialised self interest groups and/or wealthy individuals and corporations - then again I'm a cynic and a bit of a anarchist :)

I do agree with your last two paragraphs though.

And finally:
A law firm receptionist answered the phone the morning after the firm's senior partner had passed away unexpectedly.

"Is Mr. Smith there?" asked the client on the phone.

"I'm very sorry, but Mr. Smith passed away last night," the receptionist
answered.

"Is Mr. Smith there?" repeated the client.

The receptionist was perplexed. "Perhaps you didn't understand me I'm
afraid Mr. Smith passed away last night."

"Is Mr. Smith there?" asked the client again.

"Madam, do you understand what I'm saying?" said the exasperated
receptionist. "Mr. Smith is dead."

"I understand you perfectly," the client sighed. "I just can't hear it often enough."

Mike Harding :)
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Follow Up By: mattandlana - Thursday, Jun 09, 2005 at 01:44

Thursday, Jun 09, 2005 at 01:44
ROTFL!! It's pretty rare to hear a new lawyer joke, and that's a good one!

One of my favourites in return: A partner in a small 2-partner firm took instructions from a little old lady on a will. It was a simple job so he charged her his standard $100 fee. She didn't want to be bothered with him posting her the bill etc, so she paid him in cash on the spot with a crisp $100 bill, and left with will in hand.

Some time later, after she was well gone from the office without leaving any forwarding details, he discovered that she had accidentally given him TWO $100 bills stuck together.

Now he faces an ethical dilemma ........

....... does he tell his partner?
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