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  1. #1
    Join Date
    Oct 2011
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    Default On risk and liability

    I had a conversation with one of the engineers (Matt) at work the other day and some of the conversation is relevant to what is done here.

    As most would have seen, when an electrical question is asked the mods sometimes post a warning along the lines that electrical work should be done by qualified people and the forum bears no responsibility for advice offered and so on.

    However, every so often someone asks about the strength of a beam or whether someone can make a part for compressed gas line, or some other action that if it failed, could damage property or injure or even kill people. This is an area where you need to be very careful, as a court will take the view that someone is liable if they should have known better - and as Matt pointed out, this almost always includes engineers as their training is broad enough to cover all the common things and give them an appreciation of the un-common. This has added complications if there is a mandatory standard or code involved, as those things rarely allow any wriggle room.

    Engineers who work for an employer are usually covered by their employer's insurances provided they are working on their employer's projects in an approved way. Matt tells me that because he does private work he has his own insurance (that costs thousands per year), but his cover has limits on what he can and can not do.

    A simple example of this would be a beam to hold up some weight at the end of it - say you had a MIG wire feed unit you wanted to suspend. A person on the street may set something up; maybe triangulate it for strength (have it looking like half a roof truss) - perhaps test it by hanging twice the weight on the end and it would be considered fit for purpose. However, if an engineer was asked to advise on that, the expectation (of a court) would be that the engineer has done the necessary calculations to be able to prove that it will not fail under reasonable conditions (like having someone's 4 year old swinging on it). As it may be considered a lifting device, there would be an expectation that the crane standard has been referred to, to make sure it complies if it is covered by that. Apparently it does not matter if there is no payment involved - a qualified engineer 'should have known'.

    Another was back in the days when papers were delivered as a rolled up object was a paper thrower. The requester wanted to have a machine in the back of his ute that would throw papers on a signal. Not difficult and even rather interesting, but then he mentioned linking it to a GPS unit. The end result was that he could drive down the street while the machine on the back would automatically shoot rolled up newspapers into yards. effectively, this made it into an automatic weapon (imagine if you were standing in your yard when the ute went past, or your car was parked in a different spot...). Trouble could accumulate to eyebrow level very quickly.

    The reverse of this is true too - if someone who 'should know better' sees something that looks to be unsafe, they have a 'duty of care' (legal term) to point that out.

    It was interesting conversation, but as it applies to the forum, I guess it can be summarised as -


    • If you see that someone has posted something that looks unsafe, then you need to say something
    • If you want something made that could fail in a nasty way or cause injury while in use, then you need to be clear in pointing that out, and (if it is your specification or design) accept all liability for that, although the maker still has some responsibility.
    • If you are soliciting advice from others for something that could fail in a nasty way or cause injury while in use, remember that if you outline a situation too specifically, those who are best able to help may become liable for failure. As an example for the beam issue above, a question about what is good design to support a 20kg cantilever load would probably not cause an issue, but as soon as specifics are involved (I want to use some 30x 3 RHS), it gets awkward. Asking for general advice is fine but advice specific to your situation is not.
    • Illegal is illegal. If you are asked to make something and you suspect that it is for something that will not be legal, then you should not be making it, even if that means stopping half way through.


    Michael

  2. #2
    Join Date
    May 2011
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    Murray Bridge S Aust.
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    Default

    Thanks for this Michael, I knew you couldn't actually design something (other than work stuff) but I didn't know that you legally couldn't suggest either.
    I wonder if this will effect some of the questions being asked on this Forum?
    Kryn
    To grow old is mandatory, growing up is optional.

  3. #3
    BobL is online now Member: Blue and white apron brigade
    Join Date
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    Perth
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    Default

    When I started to consult to mens shed about wood dust control, I asked a former magistrate at our mens shed about the "liability of free advice".
    He took it quite seriously and went away and looked at the law in WA and came back later and said;
    If you offer advice for as a profession and obtain renumeration then you have much more of a legal obligation than if you provide free advice or an opinion as long as there is no coercion.
    Interestingly he said that this applied to his advice as well, as he provided it for free.

    The prospect of setting up a wood dust advice business so I could charge and then pay insurance etc to cover myself was all too much so I forgo payment because I don't want to be in this situation.
    A number of mens sheds also asked me to install a complete system for them but the thought of handling ongoing complaints and fixes regarding this also looked like it had knobs on it and I do have other things I'd rather do
    Now when I provide to a mens shed I make it clear that I offer free advice and it's up to them to get it checked out professionally.

    The was a very recent case where an internet influencer pretending to be a media star told a follower (for free) they should kill themselves and they did, and the influencer ended up with 2 year plus jail sentence. The BIG difference here is there was also stalking and various forms of psychological coercion involved.

    Here's few examples that might stimulate a bit of discussion;

    Magistrate, What happened?

    Case 1:
    Accused: the car ramps I made from some pieces of scrap metal collapsed and crushed my mate.

    Case 2:
    Accused: the car ramps my neighbour and I made from some pieces of scrap metal collapsed and crushed my mate.

    Case 3:
    Accused: the car ramps I made according to my neighbour's instructions, collapsed and crushed my mate.

    Case 4:
    Accused: the car ramps I made based on something I saw in a car mag collapse and crushed my mate.

    Case 5:
    Accused: the car ramps I made using JoBlo's instructions on the internet, collapsed and crushed my mate.

    Case 6:
    Accused: the car ramps I made according to what I saw on You tube, collapsed and crushed my mate.

    Duty of care is interesting as it legally depends on the association between the persons involved. If you see a live exposed mains wire on a footpath you and your work mate are accessing while on a job and don't report it and your workmate gets injured that's a problem, same goes for supervisors like a teacher or any workplace, otherwise sadly there's no legal obligation to report it. The association between any two "nobbies" on the internet is usually pretty loose. If not then just about every second thing I see on Youtube should be reported.

  4. #4
    Join Date
    Aug 2008
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    near Rockhampton
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    This is what you get when you have a society that lets a noisy minority dictate to it, encouraged by groups seeking more wealth and power. I better retreat to my safe space.
    Gold, the colour of choice for the discerning person.

  5. #5
    Join Date
    Oct 2011
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    Default

    Quote Originally Posted by KBs PensNmore View Post
    I knew you couldn't actually design something (other than work stuff) but I didn't know that you legally couldn't suggest either.
    I wonder if this will effect some of the questions being asked on this Forum?
    A couple of things here -

    I can suggest (as can other people) but the issue is if something goes wrong, should the person who made the suggestion have known better? As a simple example, if someone asked whether it was safe to weld outside when it was raining and you said yes and someone was injured because they relied on your advice as an experienced welder, you would be at fault. A court would maintain with your experience you should have known this was unsafe or alternately should have qualified your advice with all the bits you left out about keeping things dry, making the actual weld under cover or what ever.)
    On the other hand, if someone who was new to welding or self taught said the same thing, they may get called an idiot but because they are not experienced or 'expert' in that field, they would not be held as responsible as you would be. The person accepting their advice may even come under fire for trusting that advice even though they knew that person did not have the back ground to give advice.

    There is advice and "Advice". If you asked me whether a M6 bolt would be alright to attach a garden hose reel to a post, that's fine because at the end of the day if it falls off, no great loss is incurred. I could be held liable but the chances are you would not bother as it would cost you more than any settlement and really it is not specialist knowledge, so no one would believe that you relied solely on my advice at the expense of your own thoughts/ feelings on the matter.
    However, if you relied on my advice for something that required specialist knowledge (such as a bolt to hold on the fuel tank of your ultralight, or whether the bridge you built to cross the creek on your property is strong enough) where failure could be catastrophic, then because you are relying on my advice if something goes wrong, I am the person that will be held responsible. A court would say (if it were the case) that I have specialist knowledge that I should have drawn on when giving that advice. Courts have even said in some cases that people should have known they don't have the necessary specialist knowledge, and so are responsible for a failure related to their (bad) advice.

    Ever noticed that doctors don't like giving casual medical advice if you meet them in the street? Same thing. If you met your Dr at the shops and said 'I have a sore throat', he/ she won't want to tell you what to do as without a proper investigation, they could get it wrong and it would be maintained that they should have run all those expensive tests to check that it was not cancer or something else. The best you will probably get is 'Come and see me at the surgery'. When I first discovered I had hearing issues, the specialist immediately scheduled all sorts of tests, just so he could say that it was not related to some other condition.

    I can (and occasionally do) do silly things that do not end as well as I would like. Provided that I'm the only one affected, that is really my issue. The problem is if someone takes my advice or actions as being 'expert', then there are issues. As Bob noted, there is lots of bad practice/ advice given on Youtube. I think it is only a matter of time before that ends up in court (if it has not already).

    As far as the forum goes, there should not be an issue with advice of a general nature given by members to members. Most advice given is not of a critical nature ("Should I make tool holders from 4140 instead of MS" will not foreseeably result in injury). The problem comes about when someone comes and says "I have a 100UB that needs to support 2000kg. Will that be strong enough". You will not hear a peep out of anyone qualified to answer that, as there are too many unknowns and/or there a large cost to ensuring a low level of risk.

    I raised this issue as I had that conversation the other day and felt it was worth repeating so that members understood that there are some questions that can't (or won't/ shouldn't) be answered.

    Michael

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