Being secure at HOME assault

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Originally Posted by Cruzi

In the US you can do what you like to anyone who enters your home, but keep in mind the US is murder central in the western world, their murder rate is about (Edit) 3 times higher per capita than Australia.
In Australia any force you meet an assialent with will be examined very carefully.

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Ya know it's funny how each of us view things... Most woudl say see look at those lunatic americans... To be honest those figures show Australia in a poorer light than the US. US cities are far denser populations with much higher over all populations with a higher corresponding crime rate... They also have increadibly easy access to guns... And only 3 times higher murder rate than here. I can only wonder what the murder rate would be here if monkeys had free access to guns.

Hi Toolin,

extreme yes, possible yes.

dont forget the text states;

"the civil liability reforms in most jurisdictions provide that no duty of care arises in respect of conduct engaged in self defence against unlawful activities"

"No duty of care"....not limited, not open to discussion, but "No" duty of care......."NO" is like "SHALL" or "MUST", basically beyond debate.

The law can definately be grey, I lost a fail to produce licence once because the magistrate agreed with the arguement that forgetting to carry it is reasonable - I often wondered why speeding isnt included then as you might "forget" the speed limit. :p

So I think I will stick with my original thoughts......back to law school for the auther :)

Well let me see do I think three people that are highly educated and specialized in their particular fields of law don't have a clue about what they are talking about or do I believe an armchair expert (not meant as an insult as we all aspire to be armchair experts in this thread)... No offence buy my money is on the trio of experts.

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Originally Posted by Toolin Around

Well let me see do I think three people that are highly educated and specialized in their particular fields of law don't have a clue about what they are talking about or do I believe an armchair expert (not meant as an insult as we all aspire to be armchair experts in this thread)... No offence buy my money is on the trio of experts.

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Armchair expert..........where do you get that from? :?

Perhaps the text needs to be explained a little further so I can put me pipe away :D as the way it appears in this thread is that, civilly at least, you have no duty of care when defending yourself against serious criminal activity.

Going off the text as quoted, I am sitting at home like wazoz is, stupid breaks down the door and goes ballistic. Perhaps I am about to be the victim of a serious assault. Unlike Wazoz I show no duty of care, run to the drawer and grab a butchers knife and drive it into him. Stupid falls down dead. What if I swing my steel pipe with gay abandon and if it hits him it hits him. And when it does he dies of a fractured skull?

Are they suggesting that after I am charged and convicted of manslaughter that the family of the deceased cannot claim against me?

Its the "no duty of care" bit that is really out there and goes against Common Law which would take precedence I would have thought.

Perhaps Im wrong.

The easiest way to prove or disprove it is to find a relevant case that's gone before the courts in australia. And let us know when you find it.

We've all heard all the rumours of such phantom cases of monkey sues victim... but I've never found one from a credible source. Doesn't mean they don't happen but I'm a little suspect of their validity.

Deal, and in the meantime I am sure you will present us with a case where a court has denied compensation to a criminal who has been injured where the assailant showed "No duty of care".

cheers :)

Free access to guns?
Dont you think they haven't already got that?:oo:

They love criminals here

http://www.news.com.au/heraldsun/sto...44-661,00.html

Welcome to the new Australia

You get exactly what you vote for

Sit down, shut up and do as your told!

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Originally Posted by Toolin Around

Ya know it's funny how each of us view things... Most woudl say see look at those lunatic americans... To be honest those figures show Australia in a poorer light than the US. US cities are far denser populations with much higher over all populations with a higher corresponding crime rate... They also have increadibly easy access to guns... And only 3 times higher murder rate than here. I can only wonder what the murder rate would be here if monkeys had free access to guns.

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Remember the rate was per capita, a better comparison than whole numbers, were there is under 300 a year in Australia compared to around 25,000 a year in the US. Washington alone has more murders than Australia and a population of around 6 million.


Also the rate quoted was country wide, a recent report by the FBI found that crime rates were 2 times higher in the cities than rural areas per capita. For example Washington is more than 10x the US national rate. That makes Washington a staggering 30 times more likely than in Australia.......

Another scary statistic from the same search also showed just over 42% of murders go unsolved in the US compared to less than 10% in Australia.

And Americans can't shoot straight.........all those movies......50 bullets per six-gun.

Oh Well!

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Originally Posted by watson

And Americans can't shoot straight.........all those movies......50 bullets per six-gun.

Oh Well!

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There was a seige in the US can't remember when, late 1800's IIRC where well over 33,000 rounds were fired and no-one got hit.:doh:

I'll bet the barn was buggered though.

Tee Hee.

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Originally Posted by dazzler

Deal, and in the meantime I am sure you will present us with a case where a court has denied compensation to a criminal who has been injured where the assailant showed "No duty of care".

cheers :)

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Nope! I wasn't trying to prove or disprove anything just posting something for food for thought. I'm satisfied that the authors are in a far better position to know what they're talking about then anyone here.

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Originally Posted by Cruzi

Remember the rate was per capita, a better comparison than whole numbers, were there is under 300 a year in Australia compared to around 25,000 a year in the US. Washington alone has more murders than Australia and a population of around 6 million.


Also the rate quoted was country wide, a recent report by the FBI found that crime rates were 2 times higher in the cities than rural areas per capita. For example Washington is more than 10x the US national rate. That makes Washington a staggering 30 times more likely than in Australia.......

Another scary statistic from the same search also showed just over 42% of murders go unsolved in the US compared to less than 10% in Australia.

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Where I was going with what I said is that here the killing is very up close and personal where someone is beat to death with an object and or hands and feet. Killing is hideous no matter what but to beat someone to death is far more deep and disturbing than a similar act with a gun. I would say it takes far more depravity of mind to kill someone with your own hands than to stand back and shoot someone.

When you consider that, one can only be thankful that guns aren't readily available here or I wouldn't be surprised that australia would be vying for the top spot. After all aussies don't like being second in anything :wink:

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Originally Posted by Toolin Around

When you consider that, one can only be thankful that guns aren't readily available here or I wouldn't be surprised that australia would be vying for the top spot. After all aussies don't like being second in anything :wink:

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This one thing even the Kiwis beat us in, but unfortunately we are pretty high in comparison to the UK, Japan and quite a few other countries.

When we had guns the rate was the same, in fact the only thing that changed was the method, guns down, stabbings up and 23% are with no weapon at all.

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Originally Posted by Toolin Around

Where I was going with what I said is that here the killing is very up close and personal where someone is beat to death with an object and or hands and feet. Killing is hideous no matter what but to beat someone to death is far more deep and disturbing than a similar act with a gun. I would say it takes far more depravity of mind to kill someone with your own hands than to stand back and shoot someone.

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I think on the surface what you say looks valid, but consider this - if you hit someone, do you expect/intend that to kill them? If you point a gun at someone and pull the trigger, do you expect/intend that to kill them?

Killing someone with your bare hands certainly would be considered brutal, but I doubt that the perpetrator's initial intention was to kill the victim - cause grievous bodily harm, maybe. I don't think you can say the same for shootings - really the intention of the perpetrator is to kill the victim.

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Originally Posted by Toolin Around

Nope! I wasn't trying to prove or disprove anything just posting something for food for thought. I'm satisfied that the authors are in a far better position to know what they're talking about then anyone here.

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Oh, food for thought :rolleyes: :p

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Originally Posted by dazzler

Armchair expert..........where do you get that from? :?.

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Are you a highly educated expert in law do you even have a law degree... diploma... If not, you may know a bit about law and able to rattle on to people so as to make them think you're knowledgeable; but ultimately you're an arm chair expert that has no comprehensive practical and or working knowledge of the law and ultimately your advice is useless. But it doesn't stop us from having an opinion - and shouldn't. Which means everyone here would be classed as an armchair expert. I know there's the odd lawyer on the forum - ever wonder why they don't respond to this sort thread. Probably don't like being lectured by armchair experts.

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Originally Posted by dazzler

Oh, food for thought :rolleyes: :p

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I put that as the heading to the quote - remember.

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Originally Posted by Toolin Around

Are you a highly educated expert in law do you even have a law degree... diploma... If not, you may know a bit about law and able to rattle on to people so as to make them think you're knowledgeable; but ultimately you're an arm chair expert that has no comprehensive practical and or working knowledge of the law and ultimately your advice is useless.

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Hey Dazzler,
Are you going to give Toolin some insight into your background? :cop:

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Originally Posted by KevM

Hey Dazzler,
Are you going to give Toolin some insight into your background? :cop:

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So if he's a copper or was then he can state what law he's an expert in and what his credentials are. Some how I doubt negligence is part of the law enforcement he's done which is what here he's passing himself off as being more learned than the authors the the quote.

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Originally Posted by Toolin Around

I know there's the odd lawyer on the forum

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Is there any other kind?:D

Sorry to all the lawyers, but I couldn't resist a gratuitous shot.

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Originally Posted by Toolin Around

Are you a highly educated expert in law do you even have a law degree... diploma... If not, you may know a bit about law and able to rattle on to people so as to make them think you're knowledgeable; but ultimately you're an arm chair expert that has no comprehensive practical and or working knowledge of the law and ultimately your advice is useless. But it doesn't stop us from having an opinion - and shouldn't. Which means everyone here would be classed as an armchair expert. I know there's the odd lawyer on the forum - ever wonder why they don't respond to this sort thread. Probably don't like being lectured by armchair experts.

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Diploma in Investigations
Diploma in Risk Management
Diploma in Occupational Health and Safety
19 years practical experience in law enforcement in state, commonwealth and international jurisdictions with 6 years of those adjudicating on matters to be referred to court.

I have also completed research and presented opinion and training with respect to application of Commonwealth Law in State Jurisdictions.

No I am no expert. I have obviously struggled with your post because it goes against what I have experienced. Legislation always operates under the assumption that it will be interpreted against pre-existing common law. And in the case we are discussing I cant see how ones duty of care can be legislated away against common law.

Where exactly have I passed myself off as being more learned than the authors of the quote? What I have done is argue against what they have said. Simple. I may do it in a smart a$$ way but that is my style. Like it or not.

But what I have learnt is that the law is about arguement, which is why we have lawyers and why we have courts. So thats what I have been doing, arguing a point of law. At no time have I played you personally, only the statement that you or your teachers have made. If my arguement is flawed then show me where and I will be more than happy to give kudos where its due.

But seriously, if you have such difficulty with my arguements, is law really for you?

I apologise if I have upset you in any way. :)

cheers

Quote:

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Originally Posted by dazzler

Diploma in Investigations
Diploma in Risk Management
Diploma in Occupational Health and Safety
19 years practical experience in law enforcement in state, commonwealth and international jurisdictions with 6 years of those adjudicating on matters to be referred to court.

I have also completed research and presented opinion and training with respect to application of Commonwealth Law in State Jurisdictions.

No I am no expert. I have obviously struggled with your post because it goes against what I have experienced. Legislation always operates under the assumption that it will be interpreted against pre-existing common law. And in the case we are discussing I cant see how ones duty of care can be legislated away against common law.

Where exactly have I passed myself off as being more learned than the authors of the quote? What I have done is argue against what they have said. Simple. I may do it in a smart a$$ way but that is my style. Like it or not.

Didn't you say the authors needed to go back to school - somewhat arrogant don't you think especially if as you say you're no expert.

But what I have learnt is that the law is about arguement, which is why we have lawyers and why we have courts. So thats what I have been doing, arguing a point of law. At no time have I played you personally, only the statement that you or your teachers have made. If my arguement is flawed then show me where and I will be more than happy to give kudos where its due.

I don't know why you were trying to "argue" with me over it though... What is it going to prove? You say one thing I say another. None of which means sh it, especially when it comes to the civil liabilities act. About as futile as pushing water up hill with a rake don't you think. My intension was to bring to the forum so as to add information for people to digest how ever they saw fit - nothing more.

And yes you were trying to "play" me, as you tried to draw me in to an argument you most likely thought you would dominate... When did you plan to let me know your background? It's an age old trick on this board that I have seen time and time again.

But seriously, if you have such difficulty with my arguements, is law really for you?

Difficulty with what you said - nope. I found it laughable but not difficult when you said the authors needs to go back to school. As for the rest of it I knew what you were up to so played it safe. Is the law for me!?!? I'm only taking the course as it's part of my degree - I certainly wouldn't to be a lawyer for any reason.

You may have misunderstood and thought I was ticked off because my style of writing is very inanimated and to the point - boring in other words... If I'm pis sed off I'll tell ya. I think one thing I am on this forum is up front with what I think - maybe to a fault.

I apologise if I have upset you in any way. :)

No need to mate

cheers

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So now that we have that off our chests... Did you find any cases to support your position. I suspect you are having trouble finding any.

Topic...Topic ....Topic!

Back to it please.

So do I have a duty of care to an intruder who is trying to injure me?
"He was in my shed and I confronted him then he attacked and got hit in the head with a stilson for his trouble"
(just in case thread wasn't grey enough :D)

[COLOR="black"]

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Originally Posted by Gingermick

So do I have a duty of care to an intruder who is trying to injure me?
[COLOR="Black"]"He was in my shed and I confronted him then he attacked and got hit in the head with a stilson for his trouble"
(just in case thread wasn't grey enough :D)

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Hi Mick

This may answer your question; From Sydney Morning Herald dated 29/8/02

Teen wins $50,000 damages after breaking into home

August 29 2002

A teenager who broke into the home of a Sydney nightclub licensee was today awarded nearly $50,000 damages after being attacked, sparking criticism that the law was standing behind the intruder instead of the householder.

Joshua Fox climbed onto the roof of the Peakhurst Inn after he had been denied access to the downstairs nightclub on April 23, 1999.

He entered the on-site residence of the hotel licensee, Honeheke Gerald Newton, who lived there with his wife and two children.

When Newton found the then 16-year-old intruder he struck him repeatedly with a baton-like object.

Mr Fox, now 19, received injuries to his head and face, requiring surgery.

The NSW District Court today awarded Mr Fox $49,049 in damages.

His mother Michelle Lee Kilby, who sued for nervous shock after seeing her son's injuries on the night, also received $18,578 in damages.

Mrs Kilby claimed she suffered from sweating, insomnia, episodes of crying and nightmares after seeing her son's injuries.

"I am persuaded that Mrs Kilby did sustain nervous shock in that as a direct consequence of observing her son's condition she experienced an abnormal recognised psychiatric condition," Judge John McGuire said in his decision.

Judge McGuire found while Mr Fox should not have entered Mr Newton's property, the level of violence used against him was unnecessary.

After entering the hotel's residence, Mr Fox hid in the laundry to avoid detection but was quickly found and attacked by Mr Newton.

"The plaintiff was intoxicated, argumentative and so on and that he had created a situation in which the use of force to expel him was a natural and lawful consequence of his own misbehaviour," Judge McGuire said.

"However, the degree of force used was in the end unlawful and not the necessary consequence of his own condition and behaviour."

Judge McGuire found Mr Newton was performing his duty as Peakhurst Inn licensee when he attacked Mr Fox and therefore the pub was liable for his actions.

"Clearly he would have been expected to prevent unauthorised persons from intruding onto the premises for whatever purpose, be it to steal from the roof area, to seek illegal entry into licensed premises, to vandalise those premises or to rob the hotel," Judge McGuire said. He also said he was very impressed with dazzlers valid arguments on the forums of late!

NSW Opposition justice spokesman Chris Hartcher said the judgment sent the wrong message.

"No legal system can tolerate situations where criminals are allowed to use the law for their own profit," he said.

"The legal system must stand behind the home owner, not the burglar."

It all comes down to reasonableness and basically whatever ones response is it must be proportional to the threat. Sadly the 'reasonableness test"
will be viewed in the cold light of a court room.

cheers

Hang on, this even covers something i was searching for the other day :)

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"clearly he would have been expected to prevent unauthorised persons from intruding onto the premises for whatever purpose, be it to steal from the roof area, to seek illegal entry into licensed premises, to vandalise those premises or to rob the hotel," judge mcguire said. He also said he was very impressed with dazzlers valid arguments on the forums of late!

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:U heh

I recently had the misfortune of also being the victim of a home invasion - my 16 year old son's 'friend' opened the door because he knew one of them, they said they needed help but they threatened to smash the windows if they didn't let them in. They came in and took alcohol and mobile phones and other valuables.

This is the third incident - the first was a stolen car from my garage, they came into the house while I was alone and sleeping and stole the keys among other things. Next my new car was 'stomped on' while parked on the street.

Luckily nobody was hurt, but all I wanted to do was move, imediately, I didn't feel safe in my home. Sadly I don't know anywhere that is truly safe anymore, and I can't afford to move to a 'better suburb' anyway, I made the decision to install Roller Shutters, while I don't particularly like the look of them and they are quite pricey. I had to come up with 25% deposit and the remainder on interest free terms for two years through certigy. All up $6,500 for 7 windows - I know I'll sleep much better when they go on in a few days.

I also put extra locks on the sheds, gates, doors etc, I also put inexpensive door sensors on the doors, sensor lights all around the property and I will probably alarm the garage and shed too when I have some more money.

The mag lite sounds like a good idea - but I don't intend to open the doors to anyone anymore.

good luck in your

Quote:

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Originally Posted by dazzler

Hi Mick

This may answer your question; From Sydney Morning Herald dated 29/8/02

[color="black"]Teen wins $50,000 damages after breaking into home

August 29 2002

A teenager who broke into the home of a Sydney nightclub licensee was today awarded nearly $50,000 damages after being attacked, sparking criticism that the law was standing behind the intruder instead of the householder.

Joshua Fox climbed onto the roof of the Peakhurst Inn after he had been denied access to the downstairs nightclub on April 23, 1999.

He entered the on-site residence of the hotel licensee, Honeheke Gerald Newton, who lived there with his wife and two children.

When Newton found the then 16-year-old intruder he struck him repeatedly with a baton-like object.

Mr Fox, now 19, received injuries to his head and face, requiring surgery.

The NSW District Court today awarded Mr Fox $49,049 in damages.

His mother Michelle Lee Kilby, who sued for nervous shock after seeing her son's injuries on the night, also received $18,578 in damages.

Mrs Kilby claimed she suffered from sweating, insomnia, episodes of crying and nightmares after seeing her son's injuries.

"I am persuaded that Mrs Kilby did sustain nervous shock in that as a direct consequence of observing her son's condition she experienced an abnormal recognised psychiatric condition," Judge John McGuire said in his decision.

Judge McGuire found while Mr Fox should not have entered Mr Newton's property, the level of violence used against him was unnecessary.

After entering the hotel's residence, Mr Fox hid in the laundry to avoid detection but was quickly found and attacked by Mr Newton.

"The plaintiff was intoxicated, argumentative and so on and that he had created a situation in which the use of force to expel him was a natural and lawful consequence of his own misbehaviour," Judge McGuire said.

"However, the degree of force used was in the end unlawful and not the necessary consequence of his own condition and behaviour."

Judge McGuire found Mr Newton was performing his duty as Peakhurst Inn licensee when he attacked Mr Fox and therefore the pub was liable for his actions.

"Clearly he would have been expected to prevent unauthorised persons from intruding onto the premises for whatever purpose, be it to steal from the roof area, to seek illegal entry into licensed premises, to vandalise those premises or to rob the hotel," Judge McGuire said. He also said he was very impressed with dazzlers valid arguments on the forums of late!

NSW Opposition justice spokesman Chris Hartcher said the judgment sent the wrong message.

"No legal system can tolerate situations where criminals are allowed to use the law for their own profit," he said.

"The legal system must stand behind the home owner, not the burglar."

It all comes down to reasonableness and basically whatever ones response is it must be proportional to the threat. Sadly the 'reasonableness test"
will be viewed in the cold light of a court room.

cheers

Hang on, this even covers something i was searching for the other day :)

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I think it must be a problem here as I see it often. People get caught up in the need to win that they forget what's said. The quote said there were jurisdictions where this happens... You need more to show that it's a majority. And this will really test your research skill... Has the civil liabilites act changed since then as it appears many were outraged at the verdict...

He found someone in his house and gave them an almighty touch-up. He wasn't attacked though, still, if he had known grappling he could've choked him out and shaved his eye brows:oo:

SO Daz hows those cases comng

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Originally Posted by Toolin Around

SO Daz hows those cases comng

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done mine mate - balls in your court.

Seems like things went astray a bit. Update of my experience.Criminal Justice system in Oz is a Joke, filed an AVO/VRO against the guy, Judge said today he won't put a restraining order on as he is appearing in Court in April, good on you Judge:((. Wonder if the coward will come back with support, will be his loss, won't be so kind next time around, will not be me with concussion and spinal pain if it happens again, IMO to hell with the Law, if some mongrel breaks into my house, attacks me, threatens my wife or son, even though he is 29, then I will cut loose, won't kill or maim, but whoever tries that again, will not get off lightly, if the Law punished these creeps severely, maybe they would think twice before doing it in the first place, instead of a small fine and be a good boy when you leave Court, this steady increase of home invasions, bashing senior citz etc is only going to get worse.
Sad to think 47 yrs ago we could leave the home open, sleep outside, and on the front yard as well safely, now we as innocent home owners, family oriented ppl have to barricade our homes, install security, sharpen my Jack Russels teeth to needle points:doh:, and then on top of everything we have to have due consideration for the intruder, so that we don't hurt him/them, because they can charge us back with assault. Not right, the Law is an Ass:o, some cops can't be bothered, those that do leave or just do what has to be done, Judges that are detached of the real impact an assault has on your whole well being and sense of security, handing down lenient sentences, sends a message that crime is acceptable and a normal way of life. Unless something drastically happens and soon, God help our future generations.:no:

Hi Wazoz

Welcome to the justice system :rolleyes:.

Just remember the line - "I was only trying to remove the threat". and "I stopped as soon as the threat stopped"

Have fun now!

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Originally Posted by dazzler

done mine mate - balls in your court.

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No... You did what I already said - proved the quote. You still need to prove it's a majority of jurisdictions.

Come to think of it I've had a wait a minute thought...

Firstly

You say you have a big head for law... So if you know so much why did you disregard what I said i.e about how a reasonable person would act... After all a knowledgeable person in negligence would know that that term reasonable is a very important test. I.e How would a reasonable person act in a similar circumstance. Would a reasonable person have know that there actions would have caused harm...

Second

Lets put our wisdom heads on for a moment shall we - remembering that wisdom is the application of knowledge.

How many volumes do you think the law of negligence would fill? 10, 15... With that in mind how much do you think can be conveyed in 3 or 4 sentences by the authors? So a reasonably (there's that term again) wise individual would have realized that not much can be said in such limited space and would have applied some knowledge of their own and understood that every case is judged on the actions of a reasonable person acting in a reasonable way in similar circumstances, as I attempted to expand on for you in past posts but you ignored... Hell my knowledge base is real low, 1 semesters worth, and even I could see that! But, as I suspected early on, your the competitive type - arguments are to be won; they're not to exchange views and hopefully learn. That is evident by the one case you brought up and the scenarios you tried to use to prove your point - all of which were at the very least extreme examples. And your attempt to play me and draw me into trying to argue those worthless scenarios. OF COURSE the person in the case should have been sued - have you read it!

Lets also remember you said the law isn't exact so to think that you could pull up some extreme example and beleive that proves your point is weak at best.

Now show me some cases where a reasonable person acted. Something like what the original poster had done. There is no way a judge and or jury would have found him liable for negligence in any jurisdiction.

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Originally Posted by Toolin Around

But, as I suspected early on, your the competitive type - arguments are to be won; they're not to exchange views and hopefully learn. That is evident by the one case you brought up and the scenarios you tried to use to prove your point - all of which were at the very least extreme examples. And your attempt to play me and draw me into trying to argue those worthless scenarios. OF COURSE the person in the case should have been sued - have you read it!.

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Hi again

So what do you want me to do, discuss it or not. You threw a tantie at post 64 and again now.

Where did I say I had a "big head for law". Just block copy that for us.

At post 43 you posted this;

The easiest way to prove or disprove it is to find a relevant case that's gone before the courts in australia. And let us know when you find it.

We've all heard all the rumours of such phantom cases of monkey sues victim... but I've never found one from a credible source. Doesn't mean they don't happen but I'm a little suspect of their validity.

Okay, I have gone and found a recent case that demonstrates such a phantom case. Now you want me to go and find you more. Do it yourself. As I have said already show me a case where the legislation spoken of has been used and I will tell all and sundry that I am wrong. Cant get any better than that.

The reasonableness arguement is very simple. Is it reasonable for a person to show "no duty of care" and the reasonable answer would be that it isnt reasonable. Just because the person is committing a crime doesnt remove the requirement at common law.

Though I suppose I should have just posted what I thought in the first instance, however I felt it playing the man, but I suppose by example thats fine by you, and that is that your initial post was rather, how to put this, mmmmm - poor, given that if you were to throw away your duty of care to the extent that you would consider legislation that prevents you being sued then the thing you would be worried about is spending time in prison for AOBH or manslaughter.

"Hey ma its okay, they caint sues me!. Oh, my new wifes name is bubba." :wink:

If you show "no duty of care" criminally you are screwed. :)

So back on topic.......Whatever you do, stop when you have removed the threat or bubba will be getting his textas out :q

Thanks Dazzler, not a very nice system we have hey:no:, can rely on it to let us down.
Will not let it beat me, just a lesson learnt. Now back to having fun, as soon as my back is ok, a fishing I will go
Cheers

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Originally Posted by dazzler

Hi again

So what do you want me to do, discuss it or not. You threw a tantie at post 64 and again now.

Where did I say I had a "big head for law". Just block copy that for us.

At post 43 you posted this;

The easiest way to prove or disprove it is to find a relevant case that's gone before the courts in australia. And let us know when you find it.

We've all heard all the rumours of such phantom cases of monkey sues victim... but I've never found one from a credible source. Doesn't mean they don't happen but I'm a little suspect of their validity.

Okay, I have gone and found a recent case that demonstrates such a phantom case. Now you want me to go and find you more. Do it yourself. As I have said already show me a case where the legislation spoken of has been used and I will tell all and sundry that I am wrong. Cant get any better than that.

The reasonableness arguement is very simple. Is it reasonable for a person to show "no duty of care" and the reasonable answer would be that it isnt reasonable. Just because the person is committing a crime doesnt remove the requirement at common law.

Though I suppose I should have just posted what I thought in the first instance, however I felt it playing the man, but I suppose by example thats fine by you, and that is that your initial post was rather, how to put this, mmmmm - poor, given that if you were to throw away your duty of care to the extent that you would consider legislation that prevents you being sued then the thing you would be worried about is spending time in prison for AOBH or manslaughter.

"Hey ma its okay, they caint sues me!. Oh, my new wifes name is bubba." :wink:

If you show "no duty of care" criminally you are screwed. :)

So back on topic.......Whatever you do, stop when you have removed the threat or bubba will be getting his textas out :q

---

You say I've thrown tantrums!?!?! You must be or something. Lay off the grog before you reply next time - OK? I'll let you in on a little secret... I don't put much if any emotion in what I write like smilies and such. So any tone interpreted is completely yours - i.e. the tantrum was in your head not mine.

What part of my last post do you need explaining or do you always just conveniently ignore what said and repeat what's already been addressed. You found one case that doesn't do much cause it's an extreme example. Find the phantom cases that involve the 99.9% of the population where a reasonable person acts and is sued. You know as well as I do there will always be extreme examples that are rare but the media hypes them up and they circle the globe and cause all sorts of panic and rumours. Yes technically you "proved a point" but the proof used is so insignificant that it renders your point useless. I am trying to address realistic situations not argue silly semantics. Would you also like to argue how many angels can dance on the head of a pin - that's just about as useful as that case in proving anything.

What I suspect is happening to you is you found one of the elusive man bites dog, dog sues man and wins cases and you can' t find much of anything else and that's why you keep regurgitating what's already been addressed. How far off the mark am I.

Here's another wait a minute thought...

I was thinking about the statement you made - a very good one for anyone to remember.

Just remember the line - "I was only trying to remove the threat". and "I stopped as soon as the threat stopped"

Now it would be easy to say you are an expert in this. But! that statement supports the quote I posted and what I tried to expand on completely. The example you gave completely counters it. You are trying to say that in all cases there will be legal consequences. But as your statement implies a reasonable person would counter a threat with reasonable force and then stop when the threat was stopped. And as the quote said the civil liabilities act would back them in the majority of jurisdictions. So what exactly is your point.

Pretty much sums up what I've been trying to get through to you all the way through what has been a stupid argument. Act reasonably (there's that term again) and you have nothing to worry about the civil law will back you up.

So are all these authors full of shyte also - should they consider enrolling in the Dazzler school of law?

Something tells me you knew such documents were out there as these but you've kept that to yourself as they didn't fit with the game you're playing. How far off the mark am I.

Enjoy the read.

http://www.legislation.nsw.gov.au/se...ry%20note).pdf
Self-defence and recovery by criminals
(i) Proposed Part 7 (see Schedule 1 [5]) limits liability for injury or death or
damage to property resulting from self-defence or arising from criminal
conduct as follows:
(i) there will be no civil liability for injury or death or damage to property
arising from conduct that is in self-defence in response to unlawful
conduct,
Civil Liability Amendment (Personal Responsibility) Bill 2002 [Act 2002 No 92]
Explanatory note
Explanatory note page 6
(ii) in a case where the defendant believes he or she is acting in selfdefence
but the defendant’s actions are not a reasonable response in the
circumstances (and so do not qualify as self-defence), there will be no
civil liability unless the court considers the case exceptional and that
damages should be awarded to avoid harshness or injustice (in which
case the limits that apply to the recovery of damages under Part 2 of
the Principal Act will apply, and there will be no recovery for noneconomic
loss),
(iii) no damages will be recoverable against a defendant in respect of the
death of or injury to a person or damage to a person’s property in the
course of the commission of a serious criminal offence by the person
unless the defendant’s conduct itself constituted an offence.

http://www.findlaw.com.au/article/8474.htm
Criminal activity
In South Australia, Tasmania and the ACT, no liability for damages arises if a court is satisfied that the accident occurred while the injured person was engaged in conduct constituting an indictable offence (in SA and the ACT) or a serious offence (in Tasmania) and that the injured person’s conduct contributed materially to the risk of injury. Courts have a discretion to award damages in exceptional circumstances.
In Victoria, courts are to consider whether a plaintiff was engaged in an illegal activity in determining whether a defendant’s duty of care has been discharged.

http://www.austlii.edu.au/au/legis/n...02161/s50.html
New South Wales Consolidated Acts
CIVIL LIABILITY ACT 2002 - SECT 50
No recovery where person intoxicated
50 No recovery where person intoxicated
(1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.
(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.
(3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage.
(4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case.
(5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.


http://www.austlii.edu.au/au/legis/n...02161/s52.html
New South Wales Consolidated Acts
CIVIL LIABILITY ACT 2002 - SECT 52
No civil liability for acts in self-defence
52 No civil liability for acts in self-defence
(1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding:
(a) was unlawful, or
(b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.
(3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only:
(a) to protect property, or
(b) to prevent criminal trespass or to remove a person committing criminal trespass.

http://www.austlii.edu.au/au/legis/n...02161/s53.html
New South Wales Consolidated Acts
CIVIL LIABILITY ACT 2002 - SECT 53
Damages limitations apply even if self-defence not reasonable response
53 Damages limitations apply even if self-defence not reasonable response
(1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that:
(a) the circumstances of the case are exceptional, and
(b) in the circumstances of the case, a failure to award damages would be harsh and unjust.