birding-aus

Admissiion to McGraths Hill water treatment works.

To: Keith Brandwood <>, Birding-Aus Mail <>
Subject: Admissiion to McGraths Hill water treatment works.
From: Grev Reidy <>
Date: Sat, 13 Dec 2003 20:51:44 +1100
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

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