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  • Council Facilities – They come at a cost
  • Kids
  • Back to basics
  • Liability for IT Consultants and Web Designers
  • Public Liability – Whose Fault Is It Anyway?
  • Amusement Ride Safety Considerations
  • Personal Injury Claims Involving Dog Bites & Other Animal Injuries
  • Assessing the slip resistance of flooring
  • Australian Ecolabel Program – Cleaning Services
  • Australian Ecolabel Program – Hard Floors
  • Ceramic Tile Problems
  • Controlling Slips and Falls in Restaurants
  • Safe Floors in Health Care Buildings
  • Manual For Security Guards in Shopping Centres
  • Designing Shopping Centres for Youths

Shopper sues for $750K after being hit by trolley

From: The Daily Telegraph August 15, 2007REBECCA Tormey was picking up fabric softener at a Sydney supermarket when two men “skylarking” knocked her over with a shopping trolley.

The back injury she suffered was aggravated by a sneezing episode, leaving her temporarily unable to walk, the NSW District Court heard yesterday.

The mother-of-two is suing Coles supermarkets for negligence, seeking up to $750,000 in damages over the accident at the Gladesville store in February 2003.

Click here to read the full article on the website

Alternatively, you can copy and paste this link into your browser:
http://www.news.com.au/story/0,23599,22245952-2,00.html

Council Facilities – They Come At A Cost

– from  http://www.gdlaw.com.au/Services/December06.pdf

At what cost does a Council provide facilities to the public? If facilities are provided and an accident happens, can a Council be held liable? If so, in what circumstances? What duty does a Council owe to members of the public and is the duty more onerous when the young are involved? Interesting issues! Balancing the consequences of risk and reward in providing facilities for the public will always be an issue for Councils. The Court of Appeal has recently visited these issues in a judgment that has delivered more than $1.6 million in damages to a young girl injured on a BMX track on Council land.

Rhiannon Rigby, a 13 year old, was riding her bicycle along a BMX track situated in a sporting complex at Albion Park. The sporting complex was located on community land and the track was open to the public. She cycled down the starting ramp, built up speed in an attempt to ride over a speed hump and as she took off over the speed hump her bike became airborne and she fell to the ground. Rhiannon suffered brain damage as a result of the accident and successfully brought proceedings in the Supreme Court against Shellharbour City Council and the BMX Club. The Trial Judge originally found that by failing to fence off the starting ramp to prevent it from being used by inexperienced riders, both the Council and the Club were in breach of a duty owed to Rhiannon. Rhiannon was awarded in excess of $1.8 million. Both the BMX Club and the Council appealed. The Council was the owner and occupier of the whole of the sporting complex which was a substantial area of land, much of which was heavily wooded and included a football and hockey field, tennis courts, cricket nets and changing sheds. There were numerous unsealed trails running through the area which were mostly used for bicycle riding. A BMX track occupied an area of about 100 metres by 50 metres wide within the sporting complex. The BMX track had been designed and built by the BMX Club. Development consent had been granted by the Council as the development authority. The Council had supervised the construction of the works and provided labour and machinery to undertake the works. The Council had overall management and control of the sporting complex although the ongoing management of the track was the responsibility of the Club. The BMX Club’s right of use of the track was granted by means of an annual approval from the Council for the use by the Club from Monday to Friday. The track itself was located on land zoned community land and Council approval was necessary to erect any fencing on any part of the BMX track. The Court of Appeal was called on to determine whether or not the Trial Judge was right in concluding that both the Council and the BMX Club were negligent. The amount of damages was also challenged as was the respective apportionment of responsibility between the BMX Club and the Council and Rhiannon. The Court of Appeal upheld the original Judge’s findings on negligence. When looking at issues of negligence of an occupier, in this case the Council, it is necessary to identify whether there is a general duty of care and in addition it is necessary to have regard to the content of the duty of care owed to a person in a particular case. The content of the duty of care may be determined by reference to the kind of damage suffered and the class of which an injured person is a member. The age of Rhiannon was

relevant as was her inexperience in BMX. The Court stated:

“In determining the duty of a statutory authority, control is an important consideration, particularly as a statutory authority does not necessarily have the same level of control over access to land or premises in question as does a private occupier.”

The fact that the sporting complex was managed by the Club did not abrogate the Council’s duty of care nor did it confine its generalised duty of care that was owed to those persons that used the park.

The Court concluded that the question of obviousness of risk goes to issues of breach of duty rather than whether there was a duty of care. Even if obviousness was relevant to duty, the fact that there was a risk of injury in Rhiannon’s case called for a response. The question of what response was called for went to the question of breach of duty and the obviousness of the risk was not determinative of the breach. The Court of Appeal held that the class of persons who the Council owed a duty to take reasonable care were all persons who were likely to use the track other than under the supervision of the Club and this included Rhiannon.

The Court of Appeal held that the Council ought to have taken reasonable steps to avoid injury to inexperienced riders by fencing off the starting pad and ramp to prevent it being used by such riders. The Trial Judge was correct in that finding. The Court of Appeal also held that Rhiannon was not engaged in the sport or recreation of BMX racing such as to undertake the inherent risks of the activity. The Council was not entitled to expect an entrant of Rhiannon’s age to exercise a degree of care comparable to that of an adult with a similar lack of experience.

In relation to the BMX Club, the Court of Appeal found that reasonable members of the community in the Club’s position would consider that the risk required preventative action, namely, fencing off the starting pad and ramp. When considering issues of apportionment of liability between Rhiannon, the Council and the Club, the Court of Appeal concluded that the Council and the Club were the most culpable parties. The Court concluded the Club, having designed and constructed the track, and the Council, having had day to day management of the track and being the consent authority, should equally share responsibility for the accident. The original Trial Judge had concluded that Rhiannon was 20% to blame for the accident. The Court of Appeal agreed.

A major damages claim to deplete Council funds available to provide facilities to the community. A fair result? Certainly for the young lady injured but was too much responsibility imposed on the Council and the Club? Councils continue to be exposed to significant claims where members of the public are injured utilising facilities which have been supplied or made available for the benefit of the community. This judgment sounds a further warning that Councils must take heed of the possibility that inexperienced and young persons may use facilities made available to the public. Councils must take steps to protect those of tender years from misusing facilities. The relatively minor cost of fencing in this case weighed against the catastrophic injury justifying the Court finding that more should have been done by both the Club and the Council to avoid the risk of injury and eliminate a substantial claim for damages.

KIDS

Each year about 300 Australian children (aged 0-14 years) are killed and 60,000 hospitalised by unintentional injuries – the kind often referred to as ‘accidents’. A large proportion of these accidents occur at home or on the road but a significant number occur in public places, venues and other areas controlled by others. The cost of these accidents is often significant in both financial and emotional terms. Negligence claims involving children are difficult and expensive to defend and most cases are settled out of court.

Unless we are directly involved, we can never appreciate how devastating these incidents are for not only the families but also for witnesses, for those who’s negligence may contributed to the accident and for emergency services personnel who attend the scene.

A few recent examples:

  • A 5 year old boy who travelled up the outside of an escalator in a shopping centre, fell from the top and died from massive head injuries
  • A 3 year old boy shopping with his mother who was carrying his baby sister and let go of his hand briefly to pick up an item from a shop shelf. He instantly ran out the door and out onto an external verandah wanting to look at a reversing truck. He climbed the balustrade and fell 3m onto the roadway. He suffered a fractured skull and potential brain damage. Luckily he just missed being run over as well. The whole event took only seconds.
  • An 8 year old boy who climbed on outdoor furniture on the balcony of a holiday apartment and fell 6 storeys to his death
  • An 11 year old girl who drowned when her hair became trapped in a spa inlet at a holiday resort
  • Child severely burned by a log falling out of a hotel fire place
  • A 4 year old girl who pulled a display onto herself in a department store and was crushed to death
  • A 2 year old boy fell out of a shopping trolley and suffered permanent brain damage.
  • A 3 year old girl who climbed on a chair in a shopping centre food court and fell over the balustrade to her death
  • Baby who rolled off a change table in a shopping centre mother’s room and suffered multiple fractures
  • A 12 year old boy fatally electrocuted when he stood on broken electrical conduit beside a Motel pool.
  • A 2 year old boy who had his finger amputated by the tread comb of an escalator
  • Mother and 3 year old entered a workshop to collect the father after work. A vehicle being worked on at the time on fell on the child causing fatal injuries.
  • A 5 year boy climbed on a wagon wheel displayed in the beer garden of a pub. The wheel fell on to the child and he received fatal injuries.
  • A 3 year who pulled over an electric jug located on a complimentary tea & coffee table in a restaurant and suffered severe burns.

The most common response to these incidents is: “where were the parents” but in most cases they were normal loving parents who were just momentarily distracted or put their trust in someone else to provide and inherently safe environment.

Many of these can be easily prevented by simple means.

  1. Educate staff regarding the risk that the workplace or their actions may pose to children
  2. Conduct regular documented inspections of the venue/workplace keeping in mind the often the adventurous, inquisitive and unpredictable actions of young children.
  3. Regular (at least daily) inspections of playgrounds, high chairs, structures, furniture and other areas or items used by children
  4. Guard fire places and other potentially hazardous situations
  5. Warning signs, disclaimer notices and parental supervision signage
  6. Restrict access to work areas
  7. Remove all “attractive nuisances”
  8. Take action to control known activities such as skateboarding in carparks.
  9. Install earth leakage circuit breakers and regularly inspect electrical systems

“BACK TO BASICS”

Statements of claim in liability cases usually always contain a long list of allegations to the effect of:

  • Failed to give adequate warning of a risk or dangerous condition
  • Failed to regularly inspect for risk or danger
  • Failed to identify risk of harm or injury
  • Failed to take reasonable care to avoid foreseeable risk of injury

The following list is not exhaustive but covers the basic physical risks (and common causes of injury and subsequent claims) found in retail, hospitality and other public venues along with some suggested controls.

  1. Lighting

Otherwise obvious hazards and risks can be very difficult to discern in areas which are inadequately lit. Inadequate lighting also increases the risk of violence to patrons, customers and staff.  Regular hazard inspections should be conducted externally after dark and in all internal areas without natural lighting to ensure that adequate lighting is provided and operating correctly. A light level audit should be conducted in larger venues and external areas by a suitably qualified consultant. Replace damaged fittings and blown bulbs as soon as possible. Check the operation of automatic sensors. Adjust timer switches for seasonal change and daylight saving. Similarly, too much light in the form of glare, bright spot lights and sunlight can impair vision significantly.

  1. Steps & Stairs

Falls on stairs often result in very serious injury and substantial claims. Many people just do not see the stairs particularly if they are of similar colour or pattern to the landings. The edges of steps should be highlighted by suitable means as such as non-slip strips or paint in a contrasting colour. The noses of carpeted stairs can become smooth and slippery over time. Best advice is to install metallic extrusions, preferably with rubber non slip inserts, to the nose of all carpeted steps. This will also significantly prolong the life of the steps. All steps and stairs should be fitted with at least 1 easily accessible handrail.

  1. Uneven Paths

Pedestrian paths should be kept free of slip and trip hazards such as large cracks, loose material (eg gravel, garden mulch), vegetation (tree roots and overhanging branches), uneven surfaces, uncovered drains, pot holes, subsided pavers, rotted timber boards, moss, advertising signs etc. Pathways should be well lit at all times. Any trip hazards which cannot be removed or repaired should be well highlighted with bright yellow paint or other suitable means. Kerb entry ramps are a common cause of injury and should be well highlighted.

  1. Toilets

As well as for hygiene and customer comfort reasons, toilets should be regularly inspected for water spills, inadequate lighting, leaking soap dispensers, overflowing waste bins, taps left running and undesirable activity. A toilet checking log book is highly recommended, traditional check cards on the back of the door tend to be stolen or defaced.

  1. Spills

A normally safe floor surface can become extremely hazardous after a spill. Staff should be on constant look out for spills of food, drink, oils, broken glass, rubbish and other items. Spill procedures should be implemented and include notification (ie two radio in large venues), provision of staff to stand over the spill, warning signage, wet mopping and dry mopping. It may be of value to keep a spill log to determine common locations, types and cause of spills over time.

  1. Furniture

There have been some serious injuries caused by furniture which is in poor condition. All furniture should be regularly inspected for loose screws, sharp edges, improper balance, splinters, broken components, bent legs, torn fabric, missing rubber feet etc. Pay particular attention to children’s high chairs which should all comply with Australian Standards and be fitted with a safety harness. Outdoor furniture can become brittle over time with exposure to UV and should be regularly replaced.

  1. Car parks

Car parks are not normally inspected as often as they should be. Any wheel stops should be painted in a contrasting colour, highlight any impact points (light poles, kerbs, bollards etc) repair pot holes, clean up oil spills, ensure adequate lighting, trim vegetation, install appropriate signage (speed signs, direction indicators, pedestrian crossing), ensure drain covers are in place and level, inspect prior to opening every morning for broken glass and other overnight activity.

  1. Forklift trucks

There have been a number of serious incidents in recent years involving third parties (ie customers and delivery drivers etc) being injured by mobile equipment, particularly forklift trucks. The owners/operator’s Public Liability Insurance policy may not generally cover the cost of resulting claims where the equipment should have been registered and hence a claim made on the Compulsory Third Party Insurance Policy (CTP) under the Motor Accidents Act or similar.

Legislation varies in each State and has recently been updated in some to broaden the definition of a public road. Generally, any vehicle or mobile plant (including forklifts, sweepers, “welcome wagons”, trolley tractors & trailers etc) operated in a publicly accessible area (ie car parks, loading docks, driveways, footpaths etc) should have appropriate registration and CTP. This is usually known as Conditional or Restricted Use Registration.

You should ensure that all vehicles are appropriately registered when operating on this site. All operators must have appropriate licenses and a record of this should be kept on file.

Also additional controls should be in place, particularly for forklifts, this could include speed governors, reversing alarms, flashing amber lights, warning signage, mirrors (on and off vehicles), restricting usage to outside of trading hours and barricading of operating areas.

  1. Loading/back areas

Loading docks and other non public areas are sometimes not given the same attention as “front of house areas”. Injury to contractors or delivery drivers can result in large claims. These areas should be regularly inspected, clean up spills  immediately, regularly remove waste and packing containers, highlight steps, install hand rails,  repair any damaged structures, provide non slip surfaces, remove or highlight trip hazards, discourage customers from parking in the area, ensure adequate lighting, provide adequate manoeuvring space, indicate any low height areas, highlight impact points.

  1. Balustrades and raised areas

There have been a number of fatalities, some involving children, caused by patrons falling over balustrades or from raised areas. Furniture and other climbable objects must be kept well clear of balustrades at all times. Balustrades should be correct height and free of climb points and large openings.  Balustrades and railings should be inspected regularly for structural adequacy. Building Code only requires a balustrade where a person could fall more than 1m. However, all raised areas should be protected where practical.

  1. Signage and displays

All advertising signage should be well secured and placed out of pedestrian paths. A-frame type signs have been banned now from most large shopping centres. Normally a license is required from Council to display signage on footpaths. Likewise with any displays out side the shop. These should be safe, well secured and specifically covered by your insurance policy.

LIABILITY FOR IT CONSULTANTS & WEB DESIGNERS

Recent Cases

The landmark decision of Houghton v Arms, handed down on 13 December 2006, in the High Court specifically concerned employees of a website design company, and therefore is of special interest to the IT industry.

Mr Arms set up a company “Australian Cellar Door” to sell wine from small wineries via a website. His plan was that direct sales would attract lower sales tax and avoid the 30 per cent retail margin.

He contracted “WSA Online” to set up the website. Mr Haughton and Mr Student worked for WSA and was described as the “guru of interactive website design and development”. In January 2000 Haughton told Arms about “ANZ e-Gate” which would be “perfect” for the requirements of electronic transactions over the internet. Customers could pay by credit cards with payments going directly to the wineries. Arms was told that wineries could be added to the web site by simply filling in a form and paying a small set-up fee. Arms travelled around Australia and signed up 30 small wineries based on this advice.

ANZ told WSA in February 2000 that in fact, all the wineries would have to go through a full credit card merchant facility process including producing profit & loss statements. WSA did not tell Arms about this until June 2000 when the website was only 5 days from going live and the merchant facilities could not be arranged in that time.

To reserve his credibility, Arms then had to convert Australian Cellar Door into a retailer, pay the higher sales tax and retain a 5% commission from wineries on the sales. He then operated at a loss for 12 months before changing the structure of the business to now make a profit. He was awarded $58,331 plus costs.

Another interesting point about this case was that not only was WSA Online sued but their employees Mr Haughton and Mr Student were sued for making false representations.

Best Practices – IT Consultants, Web site developers

  1. Do not make overt claims in advertisements, online or elsewhere, about your products and services ability to dramatically reduce costs, increase productivity, improve sales, or increase website traffic overnight as a result of using your services.
  2. Properly identify the client and who has authority to instruct you or be the primary contact for issues and guidance.
  3. Don’t regurgitate old contracts. Agreements should be prepared individually for each new client and checked thoroughly by a legal professional. Ensure that paper copy contracts are in place for all major contracts rather than on-line proposals or emails.
  4. All relevant milestones and dates should be clearly stated in the contract. Unless there is a clear written agreement, the client and IT consultant can have different interpretations of delivery dates, the development timetable, responsibilities and the liability of the parties for any delays.
  5. Ensure that the contract documents aspects such as handover, training, testing, support, domain name purchase, hosting, search engine listing and optimization, traffic reporting, security, updating, image creation, contingencies, support for when problems occur etc
  6. During initial meetings with clients, make it clear that implementing a new software package or establishing a successful internet based business takes time, can be risky and there will unlikely be an immediate return on capital invested.
  7. Ensure that you have adequate staff or pre-selected contractors for specialised or “overflow” situations.
  8. Hold regular, documented progress meetings with the client, do not rely solely on email correspondence. Emails tend to written hastily and use informal language. Document all meetings and telephone calls in detail.
  9. Disclaimers in the written agreement should state the fact that it cannot be warranted that the software is “bug free”. Some inexperienced clients who are not familiar with software development may expect to receive a perfect product on the delivery date.
  10. Particularly for commercial or merchant web sites, the web site developer should also attempt to limit warranties as much as legally possible otherwise you could be liable for large claims and losses caused by server unavailability, privacy violations, accessibility, data loss, viruses, payment system failures and security breaches.
  11. The web site owner should consider the use of trade marks on the web site and infringement of any copyright laws in regards to images and information. The fact that a trade mark is registered in Australia, does not mean that it will not infringe other parties’ trade marks outside Australia. Also check whether the domain name used for the web site infringes any intellectual property rights. The US has seen many recent cases of parties registering domain names which suggest an affiliation with a well known corporation which they hope to sell to the corporation in question.
  12. If the client provides any materials for inclusion in the software or web site, an intellectual property indemnity should be obtained from the client.
  13. Avoid using hidden key words or metatags in websites which contain trademarked words or slogans or that do not honestly represent the clients products or services.
  14. Undertake regular data back ups and virus scans of your own computer systems.
  15. The development and maintenance of IT systems or web site may involve the disclosure of confidential information like product releases and other business plans. Ensure that you and all of your staff
  16. Before reusing any part of new software or web site designs for other customers ensure that this is not in breach of any contractual clauses with the original client.
  17. Carefully select all of your employees, conduct thorough reference checks, provide regular training and performance reviews. Make them fully aware of all contractual arrangements and confidentiality clauses.
  18. Most importantly, be completely transparent at all stages of the project. Notify the client immediately of any issues of concern and carefully document their response.

Slip and Fall Accidents – a Brief Overview

Author: Arthur Gueli

Slip and fall accidents are quite common and these types of personal injury claims go to insurance companies regularly. And why not? Most of us walk more often than we drive. And when we’re walking we encounter as many, if not more, obstacles than when we’re in a car.

If you slip and fall and get injured, you’ll go through the same process as if you were in a car accident. You need to prove liability, which means finding negligence and causation. But unlike car accidents, the signs that someone was actually negligent aren’t always clear cut.

When driving a car there are laws and rules for how you get around. This means your duty of care is largely defined by very specific vehicle codes. There are very few laws on the books that regulate how anyone has to walk. In fact, the only laws that really exist for walking are to protect you from getting hit by a car.

Therefore, liability for slip and fall cases is hard to determine. It almost always comes down to finding whether or not someone else was acting reasonably. The phrase ‘within reason’ comes up in the law a lot, making it difficult to deal with personal injury court cases. It’s a very subjective thing, and people rarely agree on what qualifies.

Common reasons for a slip and fall injury are slippery surfaces, unseen objects and worn or torn floors or floor coverings. These all present similar liability issues. How long was the surface in that condition? If it’s slippery due to spillage, who spilled? If there was an object that has been tripped over, how did it get there?

If you’re injured from a slip and fall on someone else’s property, whether it be public, private or commercial, you need to answer these kinds of questions.

If you believe something other than bad luck is the cause, then proceed as you would with any other kind of accident. Examine the environment. Talk to witnesses. Ask questions and take pictures.

Because liability in these cases will most likely come down to whether or not the other party was acting reasonably, it’s the presentation of your argument that will make or break your case. So when you finally do approach the insurance company, stress any evidence you know could sway a judge later on.

Article Source: http://www.articlesbase.com/law-articles/slip-and-fall-accidents-a-brief-overview-198672.html

About the Author:

About author :
Arthur Gueli works with his brother Charles (a licensed personal injury attorney) teaching injured people how to protect their rights and obtain fair compensation for their damages. Learn more about liability in traffic accidents (and how to make it work in your favor) at this page on their information-packed website: http://www.injury-settlement-guide.com/personal-injury-lawsuits.html Injury-Settlement-Guide.com

General Liability in Accidents Involving Children

Author: Arthur Gueli

General liability rules vary from state to state when minors are involved, but they do tend to give children the same basic rights. This is true both for accidents caused by children and accidents resulting in the injury of a child.

If a child is injured (in any US state) they are given just as much right to compensation as if they were an adult. All the same general liability rules apply to them as if it were an injury to an adult. The only real difference is that the minor will not likely be paying the medical bills. So the parent or guardian has their own right to seek a settlement for the medical expenses they paid on behalf of the child.

A child is also able to claim damages for pain and suffering and is entitled to money for lost future earnings (if it can be shown the permanent injury will effect that).

Because the child will be unable to represent themselves in the negotiation process most states require a judge to approve the settlement (to make sure the child’s best interest are being looked after).

Once you’ve agreed on the settlement amount the insurance company will likely go out of their way to help you through the approval process. It’s in their interest as much as yours to make sure this approval goes off without a hitch. If this isn’t done properly the child could, in theory, get a lawyer and sue for more money at a later date.

Children Causing Injuries:

When the accident is caused by a child the general liability rules become tricky. There are only a few defined ages when a person is old enough to be legally responsible for something, so it becomes a judgment call in most cases.

If the child is very young though, usually below eight years old, it is generally accepted that duty of care cannot apply to them. Children at that age aren’t likely able to determine what a careful action is and therefore can’t be held liable for an accident they cause. If your personal injury resulted from someone in this age group you can still try to hold their parents accountable for not controlling their children.

Liability can generally be placed on children that are older than that. To do this you have to show that they were not as careful as most others in their age group would have been. Once a minor reaches the mid-teens they are almost always considered old enough to be held liable. This is especially true once they begin driving.

Unfortunately, no matter how negligent a minor is, they won’t likely be insured. In a car accident scenario, they’ll be insured through their parents’ policy and this is where you’ll seek damages from. In other accidents you can often go through the parents’ homeowners insurance because the child is likely a resident at that address.

There are general liability rules in place that let you go one step further. In most states, if you can prove that the child displayed gross negligence in causing your injury but there is no insurance to claim from, you can pursue a lawsuit directly against the child. This will likely be a lengthy and complex legal battle so you’d want legal council and you would only want to do it when the damages are high. The result of a win would be the minor having to pay you money once they turn eighteen and get a job.

Article Source: http://www.articlesbase.com/law-articles/general-liability-in-accidents-involving-children-202203.html

About the Author:

About author:
Arthur Gueli works with his brother Charles (a licensed personal injury attorney) teaching injured people how to protect their rights and obtain fair compensation for their damages. Learn more about the rules of liability (and how to make them work in your favor) at this page on their free educational website: http://www.Injury-Settlement-Guide.com/personal-injury-lawsuits.html Injury-Settlement-Guide.com.