Thread: Liability for small shops?

Originally Posted by jefferson

I could get my old law of torts books out but I guarantee there is a significant difference between the standard of care owed by those that charge and those that do not. So I want a retraction. If not, I will get the law books out and spend half a day going through the case law. If anyone is at all interested. Anyone here heard of Lord Denning? I doubt it. Not that anyone would give a rats.

If X warrants Y at no charge that Z is not fit for purpose after learning of the purpose, then Y has no claim, especially when Y specifies building materials Z for said purpose at no charge. Duly warned. The main duty of care applies - with some exceptions - to commercial transactions. Councillors, board members etc excepted. Chair makers that charge are NOT in that category.

Otherwise, individuals would be liable for all manner of acts. "Is it safe to cross the street?". ""Perhaps, but look left and right before you do so." Bang. He didn't look either way. No contest. No win, no fee? Slater Gordon wouldn't look at it .

End of law lesson no 25.

And yes, I do have time tomorrow to argue the point.

What about the man on the Clapham Omnibus?

The Clapham Omnibus is an English law expression to describe the "reasonable man". It has different variants here in Oz. Google it. It has little to do with the varying standard of care applied to those that do not charge for work. Spend 6 months working late into the night studying the law of Torts and get back to me.

Originally Posted by apricotripper

I was thinking about the cedar blind shake problem today. If you can't mix timbers and must stick to cedar for traditional,construction and aesthetic reasons, and its not possible to identify blind shake at construction by scrutinization, maybe something more technical. Would and ultraviolet light pick it up ? …. noticed some guys using it to pick up glue mess before finishing. Crime scene investigators use it for forensics I've heard.

How bout….. a twist test. each end bound by some kind of clamp then the clamps twist wrt each other. Since the designs aren't steam bent,,,,need some kind of pressure to reveal the crack before assembly.

or maybe …. a knee test. just bring it down sharply on the knee. That might increase your chances of finding it. The weak spot will go and split along the runout into 2 pieces. Better to get it now rather than have the bottom half of the spear thats formed when the runout splits, run into the clients thigh when he falls.

or maybe get the miller to get timber from larger more mature trees. That might produce less blind felling shake….. but I suppose there's next to none of those left.

Originally Posted by apricotripper

How bout….. a twist test. each end bound by some kind of clamp then the clamps twist wrt each other. Since the designs aren't steam bent,,,,need some kind of pressure to reveal the crack before assembly.

or maybe …. a knee test. just bring it down sharply on the knee. That might increase your chances of finding it. The weak spot will go and split along the runout into 2 pieces. Better to get it now rather than have the bottom half of the spear thats formed when the runout splits, run into the clients thigh when he falls.

or maybe get the miller to get timber from larger more mature trees. That might produce less blind felling shake….. but I suppose there's next to none of those left.

???

Originally Posted by jefferson

???

just brought to my attention earlier in the thread about blind felling shake causing a lawsuit.

And its scared out of me. One of those scary things that you can't see. Creep up on you and KILL YOU. Like termites in your studs, or rats in your wires.

Wondering of ways to identify the problem. Somebody who works the timber I'm hoping will describe how.

Originally Posted by jefferson

I could get my old law of torts books out but I guarantee there is a significant difference between the standard of care owed by those that charge and those that do not. So I want a retraction. If not, I will get the law books out and spend half a day going through the case law. If anyone is at all interested. Anyone here heard of Lord Denning? I doubt it. Not that anyone would give a rats.

If X warrants Y at no charge that Z is not fit for purpose after learning of the purpose, then Y has no claim, especially when Y specifies building materials Z for said purpose at no charge. Duly warned. The main duty of care applies - with some exceptions - to commercial transactions. Councillors, board members etc excepted. Chair makers that charge are NOT in that category.

Otherwise, individuals would be liable for all manner of acts. "Is it safe to cross the street?". ""Perhaps, but look left and right before you do so." Bang. He didn't look either way. No contest. No win, no fee? Slater Gordon wouldn't look at it .

End of law lesson no 25.

And yes, I do have time tomorrow to argue the point.

I'm no lawyer and only have an understanding of certain aspects of law. Getting back to the OP's original questions,

http://www.consumerlaw.gov.au/conten...x?doc=home.htm
http://www.consumerlaw.gov.au/conten...ets/safety.htm

Would not "Australian Consumer Law" take precedent over tort law wrt consumer's expectations, statutory guarantees, the extent of liability etc as cited in the act? So that consumers do not have to rely upon tort law to proceed?

"The ACL imposes statutory obligations upon manufacturers and suppliers of goods in terms of marketing and advertising, product safety, quality guarantees and product liability."

Especially "a significant change under the ACL, ... has been replaced with the new legal standard of “acceptable quality”"

Definition of “safety defect”

Goods have a safety defect if their safety is not such as persons generally are entitled to expect. This involves two elements: an expectation and an entitlement to a certain level of safety. The test is objective, based on community knowledge and expectations.

The product must be actually unsafe, not just of poor quality or inoperative. Just because goods may cause injury, however, does not mean they are defective. Goods .....”

The above quotes are from http://www.claytonutz.com.au/docs/ACL_Dec_2010.pdf which gives an opinion and overview of the ACL for suppliers & manufacturers and would be a great starting point for the OP to gain an understanding of his obligations under ACL.

Originally Posted by Mobyturns

Definition of “safety defect”

Goods have a safety defect if their safety is not such as persons generally are entitled to expect. This involves two elements: an expectation and an entitlement to a certain level of safety. The test is objective, based on community knowledge and expectations.

The product must be actually unsafe, not just of poor quality or inoperative. Just because goods may cause injury, however, does not mean they are defective. Goods .....”

The above quotes are from http://www.claytonutz.com.au/docs/ACL_Dec_2010.pdf which gives an opinion and overview of the ACL for suppliers & manufacturers and would be a great starting point for the OP to gain an understanding of his obligations under ACL.

…. So who/what determines the weight of each point ? ….the bloke that sounds the cleverest…. the one who best carefully selects his words to ensure he sounds like he knows what he's talking about to benefit himself and his mates….the bloke thats got the most mates….the bloke who gossips the most ? embellishes the most ? Lies the most ? …the bloke whose got the most money ? …

still need to know whats being done about preventing dangerous points brought up. Or is that thought that just getting insurance will be good enough.

Lessons I've learn't from this thread so far…
- mustn't make m&T cedar chairs unless I've got some way of testing for blind felling shake that can't be seen.
- mustn't use poly (even though I rarely do) because of the arsenic. Love my kids. Could be a big problem in case they ash on the table.
- must get insurances (all of the different types) that combined make an enormous expense to low income earners, just in case something incredibly rare occurs that I can't avoid simply by just realising that I actually don't need the possessions related to begin with. And because I'm into extreme odds must now get into lotto. Start gambling.
- take up rugby again, put up with rubbing up against other men for over an hour, to learn how not to be fearful.
- must try to avoid my reflex to vommit when I start attempting to read fine print.

love you guys.

requirements of 20 million are not uncommon now

A colleague & I were both involved in a couple of small value contracts auditing some historical data for a government department, just looking for systematic errors that had been made in the past, so they wouldn't be made in the future. The huge (in terms of paper) contracts we were required to sign demanded $20 million professional indemnity insurance, as well as workers comp. We were both sole contractors. We simply ruled through those paragraphs, initialed them and returned them. Of course, no one ever looked at them, they just signed them and returned our copies.

Originally Posted by apricotripper

…. So who/what determines the weight of each point ? ….the bloke that sounds the cleverest…. the one who best carefully selects his words to ensure he sounds like he knows what he's talking about to benefit himself and his mates….the bloke thats got the most mates….the bloke who gossips the most ? embellishes the most ? Lies the most ? …the bloke whose got the most money ? …

still need to know whats being done about preventing dangerous points brought up. Or is that thought that just getting insurance will be good enough.

Lessons I've learn't from this thread so far…
- mustn't make m&T cedar chairs unless I've got some way of testing for blind felling shake that can't be seen.
- mustn't use poly (even though I rarely do) because of the arsenic. Love my kids. Could be a big problem in case they ash on the table.
- must get insurances (all of the different types) that combined make an enormous expense to low income earners, just in case something incredibly rare occurs that I can't avoid simply by just realising that I actually don't need the possessions related to begin with. And because I'm into extreme odds must now get into lotto. Start gambling.
- take up rugby again, put up with rubbing up against other men for over an hour, to learn how not to be fearful.
- must try to avoid my reflex to vommit when I start attempting to read fine print.

love you guys.

d. All of the above.

With the risk of being accused of sidetracking the original discussion,

I must admit I have been down the same line of thought that you are following. It would seem that “reasonable” people are no longer reasonable when they have a chance of recovering money from some one through a misfortune that perhaps they created or contributed too.

As a hobbyist I also have an interest in making childrens chairs, tables & rocking horses but have limited it to family only. That has risk as well.

My journey all started over a gentleman wandering into a workshop session at a wood turning club one evening with a quite simple request "Can someone here make me some "night sticks"?" Quantity etc to be decided after a sample was supplied from his design. Purpose of object unknown?

As secretary of that club at the time I declined his request directly and took it to the committee who on balance decided it was probably not a smart thing to do as a club. A phone call by me to the very helpfull Snr Sgt at the QLD Police Weapons Branch to clarify our stance was very enlightening wrt to an "offensive weapon" and when it is actually considered an "offensive weapon." It becomes a time, circumstance & place argument and what is reasonable.

Apparently a turner could manufacture and supply them, without recourse, to a person or entity that had a lawful purpose for them i.e. a martial arts group who used them in “training”. Outside of that “lawfull use” it all became very murky and quite a risk as to what the manufacturer’s (i.e. turner’s or club’s) actual liability might be. This was well prior to 2011 introduction of ACL.

That is why we need smart people who charge thousands of dollars per day to protect our interests either as a plaintiff or defendant. The insurer covers that cost and will conduct your defence on your behalf for you of course but you might not have too much control of that defence.

You have to mitigate (lessen) risk to you as best you can. Compliance with safety regulations; consumer legislation and taking out insurance are all steps you can take to mitigate risk to you.

These links might also help (confuse?) you. I've been there ...
http://lgdata.s3-website-us-east-1.a...ist%20only.doc
http://furntech.org.au/index.php/aus...standards.html
http://www.productsafety.gov.au/cont...atorystandards
http://www.productsafety.gov.au/cont.../itemId/971372

Originally Posted by apricotripper

..... - mustn't use poly (even though I rarely do) because of the arsenic......

I need to correct this. There is no arsenic in polyurethane. In fact, polyurethane is one of the recommended sealers to prevent arsenic in treated timber from leaching out and becoming a problem.

The small shop operator in Victoria at least can gain affordable insurance with the VWA. Google the link, you will find it. I just can't paste it for some reason.

Now various legislatures have limited the $ payable for acts of negligence. For example, the death benefit under the Commonwealth's insurance scheme (COMCARE) is limited to around $477K or thereabouts. That amount applies regardless of the level of negligence of the Commonwealth.

The Courts take a dim view of the limitations. Forgive me, but after 8 beers I forget the cases.

I recently had an incident in my shed where my mate "Col" spun a large bowl at 3000rpms with "disastrous" consequences. Lights broken, air filter smashed. Someone could have been hurt. Big time. Who was a fault?

"Col' certainly but also possibly me as I know/ knew that Col had no idea. That would limit the $ payout.

I again urge hobby woodworkers to stop taking risks in making chairs. And rocking horses. Leave it for the pros. A family friend caused me to be injured? So what. My eyesight is damaged.

And yes, I have been to Turnfest where there are no guards and the RPMs are at the max.

Originally Posted by Hermit

I need to correct this. There is no arsenic in polyurethane. In fact, polyurethane is one of the recommended sealers to prevent arsenic in treated timber from leaching out and becoming a problem.

I don't know. I was just bouncing off what Rustynail said to evanism. Maybe wires being crossed somewhere though.

I just searched …. 'polyurethane burning arsenic' ….. and got something about polyurethane foam burning arsenic but not a finish. So maybe your right and I don't need to worry about Polly.