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Thank you Wombat for a well thought through and probably quite accurate picture of the possibilities. It would appear that Joe is in heavy sink right over the biggest and deepest pond in the sewerage farm. One (very) faint hope is that he may be able to claim that the manufacturers of the peg failed to warn him of the risks of leaving the peg in a place which might cause people to trip over it, and the manufacturers and retailers supplying the hammer had a duty of care to warn against using the said hammer to affix an object in a position where it might constitute a danger to other persons. If you have ever read a manual for a new chain saw (to choose a seemingly obvious example where things can go wrong - badly so), you will know what I am getting at. If he has a sufficiently imaginative legal team it just might work. Most of us can think of at least one or more examples where cases have been thrown out or deferred for seemingly indefinite periods for reasons similarly fanciful. There was a period when recovery action for damages would be directed at the party most likely to have sufficient assets or insurance coverage to be able to meet the figures being sought. If those against whom damages are sought could not readily be identified beyond reasonable doubt, any and all parties who might have had a role to play in averting the event would be named, and the court then awards damages and cost against those whom it finds to be responsible. Then there is the matter of who is best able to pay - a point already well explored by Wombat. After all if Joe has just lost his job, his divorce is going through with a fair chance that his ex wife will 'get' the house, and his only asset is the glider and his clapped Kingswood, why would you sue him if the club has an insurance policy which could be tapped for a more attractive and recoverable figure - provided of course that they can be shown to have significantly contributed to the event? It will cost money to prove such a case, and it will cost money to defend such an allegation. Finally I am not a lawyer, and this should not be construed as legal advice or a qualified opinion. Therefore E & OE, FWIW, YMMV ACTBNR and any other disclaimer herein implied but not necessarily expressly named is applicable in respect of this contribution and no responsibility is admitted or accepted by the author for the accuracy or otherwise of anything which is contained or might be implied by the contents thereof ... etc - you get the drift. (Some of us get very coy when litigation is being discussed). Worried regards, Terry ;-) Wombat wrote thus: My take on that scenario is: Joe has been negligent and probably disobeyed a club instruction to not leave pegs in the ground where they could cause damage to people or gliders (e.g. he has not hammered it in flush with the ground, has not marked it with a large flag, and has not removed it when he untied the glider). Hence he is not covered by the Victorian volunteers legislation as he has not acted in good faith and in accordance with safe working practices. He has breached instructions given by the community organisation. |
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