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#1 Posted : 24 November 2004 10:53:00(UTC)
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Posted By Jim Mc Nally
I don't see myself as being a safety professional who gets bent out of shape every time the media run stories about some of the extreme measure organisations take when confronted with a H&S problem (bonkers conkers story as an example), I was however disappointed by one of the guests on this morning's BBC news programme who shared the studio with Bill Callaghan. The issue being discussed was a council's decision to close a local pond which had been used by locals for a number of years for swimming in. Despite Bill Callaghan's efforts to remind everyone that the decision to close this facility was because someone had died seemed to me to have almost been dismissed by the other guest. I wonder how the family of this person feels knowing that despite a death, people still want to look after their own interests, perhaps we need an equation that one plus two plus three deaths etc equals action to be taken, then we too can casually dismiss the next avoidable death which comes along.
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#2 Posted : 24 November 2004 11:30:00(UTC)
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Posted By Alan Haynes
I assume this item refers to the decision to stop unsupervised swimming at one of the swimming ponds on Hamstead Heath.

Here is a news report I read on the problem
-----------------------

Swimmers fight for the right to an early dip
Evening Standard 3 November 2004


The ladies and gentlemen of Hampstead have been taking to the heath's ponds since the 19th century. From first light, they have braved the bracing waters for a pre-work dip come rain, snow or even ice.

But now a foe more fearsome than the elements threatens their traditional pursuit - the law on health and safety.

The Corporation of London has cut the ponds' opening hours to avoid being prosecuted by the Health and Safety Executive should an accident befall any swimmer. But early birds say the move makes it almost impossible for them to get to work on time after their dip.

Now, under the banner of the Hampstead Heath Winter Swimming Club, they have launched a court bid to force the Corporation to back down. They want to be allowed into the ponds before lifeguards go on duty and have applied for a judicial review of the decision not to allow "self-regulated swimming".

Under the new timetable, Highgate Pond for men and Kenwood Pond for women open 15 minutes after first light - which means swimming starts as late as 7.50am in November and 8am in December.

Richard Reingold, 40, a lawyer and one of the 20 or so regulars who brave the ponds daily in winter, said: "It would suit most people's needs if the ponds opened at 6.30am. But 8am in December is too late for me. I'm sure people would volunteer to be lifeguards. People are committed to this." Banker Andrew Conway, 42, said: "We're all fairly grown-up after all. The feeling of going to work after a dip is fantastic. It stays with you all day and makes you much more alert."

The Corporation of London said that in addition to complying with health and safety regulations, independent experts, including the Amateur Swimming Association, say swimmers and lifeguards would be at risk in the dark. A spokesman said: "We cannot allow it."

The swimmers have employed barrister Michael Beloff QC for the court fight, while the Corporation is represented by Timothy Straker QC. The swimmers' solicitor, John Bramhall, is confident a judicial review will be granted but has appealed to the Corporation to reach a compromise. "We would prefer to find a middle ground to enable the swimmers to carry on what they've been doing, without incident, since the 1800s," he said.

Some swimmers, however, are even muttering about breaching the rules. "Some rebels would be prepared to swim without lifeguards," said Mr Reingold. "That would be foolish, but passions are running high."

-----------------------------------

If, as they say, there have been no incidents at this location since the 1800's - is there really a problem - or is it another 'bonkers conkers' reaction by a council? [or just a good item for the programme?]

I tend towards the 'bonkers conkers' theory myself.


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#3 Posted : 24 November 2004 12:40:00(UTC)
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Posted By Andy Petrie
I completey agree with Alan, it's a knee jerk over-reaction by the council.
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#4 Posted : 24 November 2004 20:28:00(UTC)
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Posted By David Brede
During a site visit to contractors working on the sea wall at Leigh on Sea, Essex a week ago I was astonished to see four women swimming off the beach there.

So far from commending them for their hardiness I realise now I should have remonstrated about their foolishness and sought to fence off the Thames Estuary in the interests of everyone else!
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#5 Posted : 24 November 2004 21:48:00(UTC)
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Posted By Jeff
Jim

A 400 metre stretch of road near us has claimed 3 fatalities and over 15 hospital admissions over the last four years.

As far as I am aware there have been no calls to close this road - so why is your pond different?

It is a knee jerk and most of us know it.

Jeff
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#6 Posted : 25 November 2004 08:27:00(UTC)
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Posted By Jim Walker
The important thing is it was a cheap knee jerk.
Cost the council nothing to impliment.

Only cost was to the users.............LA staff employers, but as we are conditioned to realise, they don't matter.
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#7 Posted : 25 November 2004 09:18:00(UTC)
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Posted By Stuart Nagle
People.

There are two sides to every story.

Firstly, when I read the orginal thread, the car and roads comparison immediately jumped into my mind also, but on further thought we need to weigh-up the overall picture in respect of this fairly remote and unmanned pond on a large park.

Firstly, as I'm sure we are all aware, public facilities run by Local Government Organisations (LGOs) are subject to the 74 Act and LGOs have been prosecuted on a number of ocassions for failures that have come to the courts following deaths and injuries, even though the accidents were fully the result of, shall we say, the 'adventurous' nature of the persons involved... and have resulted in LGOs being heavilly fined and ordered to take action to prevent further occurrences.

Secondly, there is the matter of costs. As a LGO, the costs of the provision of facilities come from the public purse and, in the event of an incident resulting in an LGO being fined, those costs too come out of the public purse i.e. those funds payed by the local tax payer to the LGO in question. There is no Government fund for paying fines, and although to some degree insurance may assist, in the event of a court finding an LGO guilty of an offence, it is unlikely that insurances would pay anything towards costs.

Where, a known hazard exists, such as in an unsupervised facility, and an accident resulting in the death of a person has occurred, what are the responsible LGO to do?

To simply ignore the problem is not an option under any circumstances. and in consideration, a dwath in a publicly owned pool in a remote location is intinsically a different case to a road death, The question is one of what is in the public interest generally. Whilst there may well be a small and vocal interest in continuing to use the facility, should the LGO ignore the outcome of the accident on the basis of 1 death in xx years is OK!! as we have more deaths on XXXXX road, or do you think they need to take action to, so far as is reasonably practicable, ameliorate the situation.

If action is necessary, costs to the LGO (and ultimately the local tax payer) will be incurred, which of course we all know will cause the vast majority of people who do not use the facility and those who do probably, to also object to the costs involved.

Whilst I am all for freedom of choice and the freedom of expression, all choices made will always result a loser - thats democracy. If there are other well supervised and managed facilites available, in the area then the only logical choice open to the LGO is too close the unsupervised facility in favour of the safer options available, if suitable and sufficient measures cannot be put in place, there are insufficient funds, and persons are threatening to jump over the fence after mid-night to swim or before 6.00am if the place does not open until 10.00am!!

One could argue that freedom of choice and the lack of lots of accidents over many years does indeed show that it is safe, but it is only safe in your opinion untill you may be affected (perhaps by the death of a family member in the facility) or another incident occurs. Then of course opinions change - like the wind, and everyone will then say that it was inherently unsafe always was and, should have been closed after the last accident and the LGO have been negligent in not doing so - here we go... another court case...

The LGOs options are limited not by choice, but by their duty to protect the public. In this instance the choices are a little more complex, it not just simply a case of erecting a few barriers and painting a pedestrian crossing on the road, the costs of infrasture and on-going costs for maintenance and manpower may well outweigh the risks involved in maintaining an unsupervised facility, where a person has already died, to simply placate a small group of individuals who vocally express a wish to bathe in somewhat unusual circumstances...

Stuart
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#8 Posted : 25 November 2004 09:50:00(UTC)
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Posted By Martin Ffitch

The fatal accident occurred at Maldon. The Hampstead pool is a different issue.

I saw the BBC news piece. It wasn't the most inspiring journalism. Simon Jenkins (The Times) gave every H&S cliche, and Bill Callaghan gave a poor reposte.


Martin
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#9 Posted : 25 November 2004 10:02:00(UTC)
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Posted By Hilary Charlton
First of all let me say that I do feel very sorry for the family of the person who drowned, however, I don't agree that this facility should be closed. I live by the seaside and you can see people (hardy fools) who go swimming in all weathers and at all times of day - people have been known to drown in the sea - should we rope off the seafront in Eastbourne at certain periods to ensure that people cannot swim when there is no lifeguard available?

Being a "local" I do not swim in the most populated area but much further along the coast where there is no lifeguard available at even the height of summer - it is a very long seafront and you could not possibly police it.

What is the difference between the sea and a pond except that the pond is probably a lot safer?

What sort of a nanny state are we running here - if someone wants to swim then let them swim - it is a great stress reliever and good exercise and in this country where we are all becoming slaves to our cars and computers and don't do enough exercise then this should be encouraged and not frowned upon.

Any sort of exercise, indeed, any sort of action involves a measure of risk and this risk should always be weighed up against the benefits to be gained from it. If we completed a risk assessment we may find that the health benefits to the persons swimming outweigh the negatives in this case.

Hilary
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#10 Posted : 25 November 2004 11:01:00(UTC)
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Posted By Jez Corfield
Its unfortunate but given the amount of civil claims is it any surprise? It might be 'knee-jerk' but look at how many people die every year in drowning or trespassing accidents.

It might not be right, but if people make claims following injury or death relating to an activity that they chose to do, then organisations are free to limt that personal choice, its an easy way for them limit their exposure to risk.

Jez
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#11 Posted : 25 November 2004 13:26:00(UTC)
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Posted By J Knight
My parents could never afford a nanny, so I have no real idea what a nanny state is; except a tired old cliche trotted out by journalists.

Has nobody come across Tomlinson v Congleton MBC here? This case would surely apply and could be used to allow the continued use of the pond as a recreational amenity.

I don't know, I blame the insurance industry for much of this,

John
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#12 Posted : 25 November 2004 14:59:00(UTC)
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Posted By Jeff
Stuart

I've read your long missive - could you kindly tell me what is the difference between this pond and the seashore?

And if there isn't one (except the sea is more dangerous) how do we cope with this situation?

It would seem illogical to pass a law to ban bathing in the sea if no one else is around, is that what you are advocating?

Jeff
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#13 Posted : 25 November 2004 15:04:00(UTC)
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Posted By Jeff
Forgive me Hilary - I didn't read your message where you also mention the pond and the sea.

I would like an answer though Stuart (hopefully more succinct than the last).
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#14 Posted : 25 November 2004 15:39:00(UTC)
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Posted By Steve Holliday
think we should all be listening to John Knight.

Although some of the details in Tomlinson v Congleton Borough Council (2003) concerned the distinction between swimming and diving and the definition of trespass, the words of Lord Hoffman should be preached to every personal injury lawyer in the land:-

“…..no duty to prevent people from taking risks which are inherent in the activities they freely choose to take”

I am all in favour of compensation that is fully justified, but how many claims have we all seen that are not. If I were the head of a Council at the moment I’d ban everything just to make sure! As a safety advisor I’d take a more reasoned stance, but the claims bill doesn’t fall into my in-tray thank goodness.

Perhaps the Government could intervene as they are trying to encourage exercise not ban it.
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#15 Posted : 25 November 2004 15:49:00(UTC)
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Posted By Jonathan Breeze
Steve,

Agree with you (& John Knight) here, yet councils seem to be slow picking up this bit of case law.

Go to www.bailii.org and type in the case name.

Also Rhind v Astbury Water Parks will highlight a subsequent case.

Re Jeffs question about the difference between the sea & a pond. I think it's easier to trace ownership of a pond than the sea and therefore easier to send a solicitors letter to the owner!
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#16 Posted : 25 November 2004 16:42:00(UTC)
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Posted By Steve Holliday
Although I’m sure there is something more pressing I should be doing, a couple of Lord Hoffman’s quotes from the actual decision are given below.

Further to what I paraphrased earlier:-

“I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may be think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so. “


Particularly relevant to the threads subject, regarding the Councils action to ensure a swimming / diving ban:-

“As for the Council officers, they were obvious motivated by the view that it was necessary to take defensive measures to prevent the Council from being held liable to pay compensation. The Borough Leisure Officer said that he regretted the need to destroy the beaches but saw no alternative if the Council was not to be held liable for an accident to a swimmer. So this appeal gives your Lordships the opportunity to say clearly that local authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers. On the other hand, if the decision of the Court of Appeal were left standing, every such occupier would feel obliged to take similar defensive measures. Sedley LJ was able to say that if the logic of the Court of Appeal's decision was that other public lakes and ponds required similar precautions, "so be it". But I cannot view this prospect with the same equanimity. In my opinion it would damage the quality of many people's lives. “
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#17 Posted : 25 November 2004 17:09:00(UTC)
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Posted By peter gotch
Jeff - RoSPA research indicates that about three quarters of drownings are at inland waters

re Tomlinson case, there have been opposite decisions + enforcement action by HSE against Environment Agency [see www.hse.gov.uk/notices ]hence EA current OPUS initiative. [Operational and Public Safety]

I know of at least one HSE prosecution for a drowning inside the perimeter fence of a factory in Scotland. Guilty plea so no precedent.

Sheriff took the view that since the occupier knew that people were cutting holes in the fence, that their duty of care towards child trespassers increased. Maximum penalty on summary conviction.

Regards, Peter



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#18 Posted : 25 November 2004 17:14:00(UTC)
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Posted By Sean Fraser
Steve, thanks for referencing Tomlinson and Jon, thanks for pointing me in the direction where I could get a copy of it.

For all those who are concerned about the media-hyped compensation culture i would urge you to read it too, especially item [48] - Council officers believed they were under a duty of care and hence liable for any injury/fatality incurred, but when it was actually put to the test there was no duty at all.

We should bear that in mind when considering the self-imposed pressures our LAs believe they are under.
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#19 Posted : 26 November 2004 11:23:00(UTC)
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Posted By Eric Burt
I read the Tomlinson case in detail shortly after the judgement and my reading of it was that it could have gone the other way if measures had not been taken before the accident.

I understand the judge's comments, but he made them in response to this particular case - Tomlinson was an adult. I wonder if he would have come to the same conclusion if Tomlinson was a child (I am thinking of Herrington v British Railways Board).

Some good posts on this thread. Cheers for the links to other case law.

Eric
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#20 Posted : 28 November 2004 11:54:00(UTC)
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Posted By Stuart Nagle
Hi, Jeff.

Thanks for your question.

I would have thought the answer was pretty obvious...

One is practicable, the other is not.

Stuart
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#21 Posted : 28 November 2004 16:22:00(UTC)
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Posted By Brett Day

Re: the incident at Maldon, there were signs up stating no diving - these were ignored by the deceased, normally he would have hit the sand bottom of the 'pool'. Unfortunately there was a concrete post at the bottom of the pool, rather than removing it the local council put a road cone on it to mark it, needless to say it floated off elsewhere !!

The council have argued that it was to expensive to drain the pool and remove the post. As someone who lives locally and is a memeber of a dive club that regularly helps the EA with a river clean up (in Chelmsford and further down about 2-3 miles from Maldon), I can only say that theIr comment is a joke - they could have contacted any of 5 local clubs who would have removed the post for at most the cost of our air fills.

The LA knew of a significant hazard and chose to do nothing about it, they are now being sued and the knee jerk reaction is to close it all up rather than risk assess and follow the result of said assessment.

Unfortunately in my experience of working with LA's they seem to be the worlds worst for complying with H&S requirements.
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#22 Posted : 28 November 2004 19:25:00(UTC)
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Posted By Jeff
Stuart

Practicable - are you sure you don't mean reasonably practicable.

However, I'm at a loss to understand why you would use that word anyway?

Jeff
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#23 Posted : 29 November 2004 07:03:00(UTC)
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Posted By Stuart Nagle
Hi Again Jeff.

No, I meant 'Practicable', Like it would be practicable to walk to the shops, but not practicable to walk to London...

In the case in point it is practicable to close the pond, but not practicable to close the UK shoreline!!

Stuart
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#24 Posted : 29 November 2004 13:53:00(UTC)
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Posted By Karen Newman
To Brett Day

Please do not make sweeping statements about the standard of health and safety in Local Authorities.There are hundreds of Local Authorities and they are not all the same.

I work for a large local authority and we are proud of our health and safety record. The Team here are all well trained and professional.

On the subject of swimming we have a large lake in a Country Park and for many years a shallow area was sectioned of for swimming. The HSE visited a number of times over the years for various reasons including to investigate the odd drowning outside the designated swimming area and they always allowed the situation to continue.

However after the last death in the lake outside the boomed area ( a heart attack as it turned out). The HSE said that as we were 'inviting' swimming ie we had made an area for swimming. We had to provide lifeguards or close the area. As we could not afford to lifeguard it to the required standard we closed the swimming area and took away the boom.
Swimming is banned in the whole lake, but people still swim. The risk of drowning is actually greater now as the lake is large, very deep and feed by cold under water springs and people swim everywhere.

Our staff get very stressed in the summer when the public despite their warnings ignore them and swim. A lot of unsupervised children also use the lake.

The River and Lake Swimming Association are campaining heavily to allow swimming to resume check out their web site for info on all their swimming in open water campaigns www.river-swimming.co.uk.

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#25 Posted : 29 November 2004 14:09:00(UTC)
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Posted By Brett Day
Karen

My comments about LA's were not sweeping. I stated:

'Unfortunately in my experience of working with LA's they seem to be the worlds worst for complying with H&S requirements.'

I only referred to my experience - I have worked with about 20 LA's over the years and these have left a lot to be desired. This particular incident was entirely avoidable, the impact with the sand bottom would not have been fatal in this particular case, the impact with the concrete post was.

Insisting on a blanket ban in this case is closing the stable door after the horse has bolted.
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#26 Posted : 29 November 2004 19:25:00(UTC)
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Posted By Jeff
Perhaps I've missed the point Stuart, but that wasn't what I meant.

However, if I have missed the point I'm sure you will provide the illumination!

Where does the term practicable come into it? Where, in the cases we are discussing, is the legal (or moral) requirement to judge whether something is practicable or not?

On another note, a local primary school (private) is publicising the success of a conker contest is has recently organised for its pupils.

I can only applaud their initiative.

Jeff
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#27 Posted : 29 November 2004 19:53:00(UTC)
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Posted By Stuart Nagle
Hi, Jeff.

Yes, I think you missed the point, but I won't go into a 'long missive' on the subject.

Good show about the conkers then. I have not heard of anyone rushing to fence off the forests yet, obviously one was 'practicable' and the other not!!

Stuart
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#28 Posted : 29 November 2004 20:48:00(UTC)
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Posted By Jeff
You've passed an opinion Stuart so in response, and as it is a discussion group, I have asked you a question concerning that opinion. Could you explain please where 'practicable' comes into this scenario?

To assist - is there, in your opinion, a legal 'practicable' requirement on the local council in this particular case? If so, under what law or regulation?

Jeff
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#29 Posted : 29 November 2004 21:08:00(UTC)
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Posted By Stuart Nagle
Hi Again Jeff...

No, you are right...I was mearly expressing my opinion of what I believed was practicable in the circumstances and what was not.

I was not confusing the term with 'reasonably practicable' nor was I citing the term in relation to any case law.

In expressing my personal opinion, being taken to task over a term of vocabulary seems rather harsh, however, you are entitled to you're opinion also... I don't know how many more ways I can explain it...

Perhaps you could enlighten me as to your aversion to the the term in the context in which it was employed...

Regards...

Stuart
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#30 Posted : 30 November 2004 13:46:00(UTC)
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Posted By Jeff
Hi Stuart

Only that I thought, by you using the word practicable, that you might be applying some legal requirement that I was unaware of.

In the end are we agreeing there is no legal requirement and it is the LA perception of what is required that has caused the problem.

Jeff

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#31 Posted : 30 November 2004 19:33:00(UTC)
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Posted By Stuart Nagle
Him Jeff.

Had you clearly explained your stance in that you though I "might be applying some legal requirement that I was unaware of" previously, perhaps I could have conveyed earlier it was not the case. I though my original response was fairly clear...but obviously something got lost in translation...

Regards...

Stuart
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#32 Posted : 30 November 2004 20:53:00(UTC)
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Posted By Jeff
I suppose Stuart that had you clearly stated what you meant by 'practicable' I wouldn't have needed to ask the question. It was just that you put doubt in my mind on what you were saying.

Still, there you go, we've both learnt something.

The something being that the subject of this thread ends up as being a perception of the requirements by a LA rather than a hard and fast requirement. And thus, some might say, a resulting knee jerk!

Jeff

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#33 Posted : 01 December 2004 19:43:00(UTC)
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Posted By Stuart Nagle
Jeff.

Guess thats your opinion then...

Stuart
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#34 Posted : 02 December 2004 09:10:00(UTC)
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Posted By Jeff
Yup. I know it is difficult to get the last word with you Stuart but let's see if this is it!
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#35 Posted : 02 December 2004 14:38:00(UTC)
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Posted By Phil Grace
Way back up this thread a JKnight stated that he blamed the insurance companies - dangerous talk..!! Surely insurance companies just reflect society?
The law states that negligent actions should result in an award of compensation. There is case law that defines the standards of care that "duty holders" owe to others. And case law that defines the standards of care such as Tomlinson have been quoted in this thread.
An insurer will argue that the circumstances of a new claim do not fall under and within the precedent - but if unsuccesful they will have to pay up.
Only if the facts of the matter are different - which would mean that a judge would state that the circumstances could be distinguished - can they hope to avoid paying up. Alternatively they can try to argue that there was no negligence - sometimes difficult in todays "blame culture".
But remember it is people who claim and insurers do their level best to defend their clients.
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