Closure of the above to birders, if it cannot be changed, will be an
immense tragedy. The cure is not "The first thing we'll do is kill all
the lawyers" . That almost certainly won't work, and as I was one, more
or less, until some years ago, I would be against that anyway. It is
people who sue, even if egged on by the legals, not the legals
themselves. Councils and other authorities have a duty to minimise
claims on the funds of ratepayers, punters and the like. Windsor
Council's attitude is a repetition of the authority controlling
Werribee, Darwin treatment works and other good birding places.
Raging against cruel fate doesn't help. The Council will be
deaf to pleas, threats and entreaties.
I can't recall now the reasoning behind it, but am sure that
an undertaking, written or otherwise, to indemnify the Council from
action arising from injury occurring during a visit to the treatment
works by the person giving the undertaking, would be of no legal effect
and therefore would not protect the Council. So that's out.
Council can probably never be completely covered against being
sued successfully by a person permitted into the area, and represented
by a wily lawyer, but it may be possible to reduce the risk of being
sued so that Council would be willing to accept that risk. There are
two possible ways of achieving this.
The first and safer way might be for the Council to charge a
small admission fee. This could be. say, $5 for the right to go onto the
area for a year. The payment of a fee on the one hand, and conditions
imposed on the permit on the other, would give Council the right to
exclude .liability as a condition of the contract between itself and the
permit holder. That exclusion of any liability would be printed,
clearly, on the Permit issued. For those who recall better than I do,
see the Irish ticket cases! It could be argued that Council would
need to ensure that only ticket holders went onto the treatment works.
That might be achieved by a large notice at the entrance, or entrances
to the effect "Trespassers prosecuted. Entry by Permit only". At
present Council needs to have an employee at the works to eject
birders. The same person could view permits. So no additional cost to
Council. Permits, in writing of course, would be issued at Council
Chambers, and the fee would cover, more or less, the cost of the process.
The second way is a bit more elaborate but might soothe
Council's fears. A lecture, or series of lectures, devised by Council's
solicitors, could be given to birders prepared to act as guides to
parties of other birders. The lectures would be aimed at the control
of persons under their control by the guides, who would , for
example, direct a member of the guided party not swim in the waterways,
or to do anything else which could cause injury. In the event of
disobedience, and the relatives of a drowned swimmer suing Council for
negligence, it might let Council off the hook if it were to plead 1.
that it had a trained guide present and in charge of the party, and 2.
that the guide, in the course of his instructed duties, forbad
swimming. In effect, Council could say, with enough truth, that it
did all it could to avoid injury.
In practice it would be necessary to put the above
alternatives to Council offficers, with the suggestion that they
consult Council solicitors - as they almost certainly would in any
case. Windsor Council, by the way it has modelled McGrath's Hill
treatment works, shows a keen appreciation of the interests of
generations of birders. It may be that they would be sympathetic to a
scheme which left Council with some minimal risk.
If something like this worked with McGrath's Hill, it might
be used for similar problems elsewhere.
The above may serve as the basis of useful discussion. Let
us avoid rantings!
Grev Reidy
Birding-Aus is on the Web at
www.shc.melb.catholic.edu.au/home/birding/index.html
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