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January 10, 2008
The Daily Mail doesn't usually mince its words. The mincing comes with its understanding of the law. Usually it's issues of self-defence where the misunderstanding of what exactly constitutes 'Reasonable Force' (ie subjective Necessity and objective Proportionate Force) leads to the defence of some people who have been put away either by a jury or by their own guilty plea because the "Nanny State" does all it can to 'protect the criminals'.
Its right-wing vitriol isn't limited to attacking the legislators and courts for juries putting away murderers, but also towards any council or town that observes health & safety regulations. Naturally the Mail doesn't quite realise that many of these regulations are in place to help protect councils from potentially heavy claims in tort.
Here's the thought-provoking Daily-Mail headline:
Health and safety killjoys order award-winning village to take down its hanging baskets
Wonderful, isn't it?
The Daily Mail goes on to criticise the council for its "politically correct" decision to ban placing these heavy (20kg) flower baskets on what the paper itself calls "crumpling" and "old" lampposts which are due to be replaced in 2010 .
Here is what is really the key issue, brought up by a sensible member of the council:
Simon Mutten, the council's environmental services manager, said: "A risk has been brought to our attention by professionals and we cannot ignore it because if we did and something, however unlikely, happened then we would be taken to the cleaners."
If you have foreseen a risk (and it doesn't necessarily have to be huge: Denning, cricket and all that jazz) with something that is your responsibility and you neglect to do something that is reasonably within your capacity and you have a well-established duty of care (as councils generally do) and someone does die or is harmed by your omission, you leave yourself up to all sorts of claims.
You may see this as a problem with the law/claims culture (see Atiyah) but that is something not easily changed, precisely because the development of the law has been trying to be as just as possible to all parties. The legislature is not (at least I hope) going to turn around tomorrow and rubbish the last 100 years of development in tort law because a bunch of farmers want to hang heavy baskets on "crumbling" lampposts. Nor should they.
This being the case, the council has taken reasonable measures to ensure the safety of its residents. The locals have substituted the flower baskets with roadside viking ship displays. They might not win a decadent flower show. Let's hope they don't turn to forming wierd vigilante cults.