Legal Liability and Self.

I was considering this recent article.

http://www.news.com.au/heraldsun/story/0,21985,25064494-662,00.html

Kim Arlington and Gemma Jones

February 17, 2009 12:00am

THE childhood sleepover is on trial in a court case that could expose parents across the country to a spate of litigation.

A boy who fractured his skull falling from an allegedly unsafe bunk bed at a mate's house is suing his friend's parents for negligence.

Cameron Thomas claims he developed behavioural problems after suffering a brain injury at his friend Joel Shaw's place at Bilambil Heights in northern NSW, in April 2004.

The NSW Supreme Court heard the then 10-year-old fell when climbing down from the top bunk, which had no ladder or guard rail - in breach of national safety standards.

Cameron's barrister Richard Royle said marks on the bunk indicated a ladder was once attached.

With government statistics showing at least 3850 children under 15 are treated each year for bunk-bed related injuries, Cameron's case could spark a series of similar lawsuits.

And I thought... Hmmmmmmmmmmmmmmmmm irrespective of "good intent" or what ever, if one does something that causes or has the capacity to cause loss, damage, injury or death to another, then one can be sued for negligence / damages etc.,

To pick on a particular sore point, it's like these parents who make "chopper" bikes with outrageously long forks, from a bike with a shit frame, and no particularly brilliant welding skills, engineering qualifications or "road worthy" certification on the modifications..

Or people who make up high voltage equipment, that they or someone else uses and it's not properly constructed or has inherent faults and or they fail to get it properly certified or tested as being safe... and some where, some how, some one somehow gets involved and it goes somewhat badly.

I was reading this book and the author had these things to say about designing stuff.

(This book is really worth getting - by the way - clever stuff +)

The Standard Handbook of Machine Design

7.1 THE DESIGNER AND THE DESIGNER'S
PROBLEMS

1.1.1 Design and the Designer

Design and engineering, although sometimes viewed as distinct, are two facets of the
same profession. Krick [1.1] states that engineering is a profession concerned primarily
with the application of a certain body of knowledge, set of skills, and point of
view in the creation of devices, structures, and processes used to transform resources
to forms which satisfy the needs of society.

Design is the activity in which engineers accomplish the preceding task, usually
by responding to a design imperative for the required task. The design imperative is
the result of a problem definition and has the following general form [1.2]: "Design
(subject to certain problem-solving constraints) a component, system or process that
will perform a specified task (subject to certain solution constraints) optimally."
The end result of the engineering design process is a specification set from which
a machine, process, or system may be built and operated to meet the original need.

The designer's task is then to create this specification set for the manufacture,
assembly, testing, installation, operation, repair, and use of a solution to a problem.
Although primarily decision making and problem solving, the task is a complex
activity requiring special knowledge and abilities. A designer cannot effectively
operate in a vacuum, but must know, or be able to discover, information affecting the
design, such as the state of the art, the custom of the industry, governmental regulations,
standards, good engineering practice, user expectations, legal considerations
(such as product liability), and legal design requirements.

In addition, an effective designer possesses the ability to make decisions; to
innovate solutions to engineering problems; to exhibit knowledge of other technologies
and the economics involved; to judge, promote, negotiate, and trade off;
and finally, to sell an acceptable problem solution which meets the imposed
constraints.

The designer must also be an effective communicator, not only with design supervisors
and peers, but also with the public, as represented by federal, state, and local
governments, the courts, and the news media.

Most of the time design proceeds by evolution rather than revolution. Thus many
of the requirements may have already been met by contributions of others, and most
of the time the engineer has to work on only a small portion of the design, requiring
only some of the requisites previously identified.

1.1.2 Design Criteria

Although the general criteria used by a designer are many, the following list
addresses almost all concerns:
" Function
" Safety
" Reliability
" Cost
" Manufacturability
" Marketability

The inclusion of safety and reliability at or near the level of importance of function
is a recent development that has resulted from governmental regulation, expansion
in the numbers of standards created, and development of product liability law, all of
which occurred in the late 1960s and early 1970s.

Although cost is explicitly fourth on the list, its consideration permeates all the
criteria just listed and is part of all design decisions.

As taught and practiced in the past, design criteria emphasized function, cost,
manufacturability, and marketability. Reliability was generally included as a part of
functional considerations. If product safety was included, it was somewhere in the
function-cost considerations.

Design critiques were accomplished at in-house policy committee meetings or
their equivalent involving design engineers, a production representative, a materials
representative, and possibly representatives of marketing and service.
In the current design climate, the traditional design criteria are still valid; however,
the additional constraints of governmental regulations, standards, and society's
desire for safety, as exemplified in product liability litigation, have to be included in
the design process. In addition, engineers must now be prepared to have their
designs evaluated by non-designers or non-technical people. This evaluation will not
be in the inner confines of a design department by peers or supervisors, as in the
past, but may be in a courtroom by a jury of non-technical people and attorneys who
have an ulterior motive for their approach or in the public arena.

Since such a design evaluation is generally a result of an incident which caused
damage or injury, to mitigate the nontechnical evaluation, current design procedures
should emphasize the following factors in addition to traditional design criteria:

1. Safety This is associated with all modes of product usage. In providing for
safety, the priorities in design are first, if at all possible, to design the hazards out of the
product. If this cannot be done, then shielding and guarding should be provided so
that operators and bystanders cannot be exposed to the hazard. Otherwise, if a riskbenefit
analysis shows that production and sale of the machine are still justified (and
only as a last resort), effective warning should be given against the hazard present.

Even though warnings are the least expensive and easiest way to handle hazards in
the design process, there has never been a warning that physically prevented an accident
in progress. Warnings require human action or intervention. If warnings are
required, excellent reference sources are publications of the National Safety Council
in Chicago and a notebook entitled Machinery Product Safety Signs and Labels [1.78].

2. Failure analysis If failure cannot be prevented, it is necessary that it be foreseen
and its consequences controlled.

3. Documentation Associated with the evolution of the design, documentation
is developed so that it can satisfy the involved nontechnical public as to the rationale
behind the design and the decisions and tradeoffs that were made.
The designer is in a new mode which places safety on the same level of importance
in design considerations as the function or the ability of the design to perform as
intended.

Arguments may be made that cost considerations are the most important. This is
true only if the cost of the design includes the costs of anticipated litigation. These
costs include product liability insurance premiums; direct out-of-pocket costs of
investigating and defending claims; and indirect costs in the loss of otherwise productive
time used in reviewing the design involved, in finding information for interrogatories,
in being deposed, and in developing defense testimony and exhibits. If a
lawsuit is lost, the amount of the verdict and the probable increase in product liability
insurance premiums must also be included.

No longer can product liability be considered after the design is on the market
and the first lawsuit is filed. Product liability considerations must be an integral part
of the entire design process throughout the function, safety, cost, manufacturing, and
marketing phases.

Additional criteria, considerations, and procedures should be included in programs
to address specifically the product safety, failure, or malfunction problems
which have contributed significantly to the existing product liability situation. Some
of the important considerations and procedures are

1. Development and utilization of a design review system specifically emphasizing
failure analysis, safety considerations, and compliance with standards and governmental
regulations

2. Development of a list of modes of operation and examination of the product utilization
in each mode

3. Identification of the environments of usage for the product, including expected
uses, foreseeable misuses, and intended uses

4. Utilization of specific design theories emphasizing failure or malfunction analysis
and safety considerations in each mode of operation

Design reviews have been used extensively for improving product performance,
reducing cost, and improving manufacturability. In the current product liability climate,
it is very important to include, and document in the review, specific failure
analysis and safety emphases as well as to check compliance with standards and governmental
regulations.

An important consideration in the design review process is to have it conducted
by personnel who were not involved in the original design work, so that a fresh, disinterested,
competent outlook and approach can be applied in the review.

1.1.3 Influences on the Designer

While attempting to meet the general criteria discussed earlier, the designer's work
and the results are affected by both internal and external influences. The external
influences, shown in Fig. 1.1, reflect the desires of society as represented by economics,
governmental regulations, standards, legal requirements, and ethics, as well
as the items shown as human taste.

The other broad area of external influences reflects what is known and available
for use in a design problem. The designer is limited by human knowledge, human
skills, and, again, economics as to what can be made.

Another important external influence on the designer and the design is legal in
nature. The designer is directly influenced by the in-house legal staff or outside
attorney retained for legal advice on patents, product liability, and other legal matters
and also is affected by product liability suits against the product being designed
or similar products.

Internal influences also affect the design. Figure 1.2 identifies some of these. They
are a result of the designer's environment while maturing, education, life experiences,
moral and ethical codes, personality, and personal needs. These personal or
internal influences help shape the engineer's philosophy of design as well as the
approach and execution. Individual designs will vary depending on the most important
local influences at any given time.