Now he has beeen deemed "lucky to be alive" ...

[The Hen]

... how much compensation will be due to Mr Baillie, would could have lost his life in a number of ways, after this incident?

Sucked feet first down the tube
Eamonn Duff
November 14, 2010



"I instantly thought, 'I'll never survive this'"... Allan Baillie. Photo: Simon Alekna

A SYDNEY man has survived the terrifying ordeal of being sucked down a seawater pipe and spat out on a beach, because of a council worker's bungle.

Allan Baillie was swimming laps at Bilgola Beach rock pool with his wife on Monday when a Pittwater Council worker opened a valve to drain the pool for cleaning.

The worker, standing on the edge of the pool, appeared to be trying to tell Mr Baillie something.

''As I swam closer to hear what he was saying, I suddenly felt this pressure, this incredible pull,'' he said. ''In an instant I was then sucked feet first inside the pipe. I instinctively thought 'I'll never survive this - there'll be something clogging the end' but in a matter of seconds I found myself dumped on the beach.''

Pittwater lifeguard supervisor Phil Dunn was first on the scene and arrived to find ''a man lying beside the outlet pipe with blood absolutely everywhere''.

Mr Dunn's initial reaction was that Mr Baillie had been injured on rocks but when the truth emerged, he turned to the council worker and said: ''You actually mean to tell me you opened up the valve while people were still in the pool?''

Mr Dunn said it was ''a clear breakdown in procedure and one you'd automatically imagine to be fatal. The circumference of the pipe is smaller than Mr Baillie's body but fortunately the sheer pressure has seen him pop straight out like a wine cork.''

He described the pipe as ''completely rusted'' and '''full of shellfish and other marine growth''.

''It's one of the most unhealthy places you could ever have the misfortune to visit,'' he said.

As a result, Mr Baillie suffered deep cuts and multiple abrasions all over his body. An award-winning author, he has been recuperating at his Avalon home and intends to seek compensation. ''There should be a clear sign saying the area is closed for cleaning and, certainly, there should never be anyone in the pool whilst they're doing it,'' he said.

Pittwater Council general manager Mark Ferguson acknowledged it was ''very lucky'' Mr Baillie was not killed and accepted responsibility.

''The guys closed the pool but, contrary to guidelines, they didn't get everyone out of the pool because there's been a practice of letting people finish their laps.''

[Jarlaxle]

Sounds to me like attempted murder. Forget a civil suit, this idiot needs SERIOUS jail time.

[Lord Jim]

''It's one of the most unhealthy places you could ever have the misfortune to visit,''

I've been in a few bars like that....

[Gob]

Obviously the author hasn't visited some of the dwellings I have had the ...pleasure... of visiting during my work.

One place in Cornwall....

[Andrew D]

Sounds to me like attempted murder.

Oh, please. You see in this report something that convinces you that the council worker specifically intended to kill Baillie?

[Jarlaxle]

His actions speak for themselves. He deliberately opened the pool drain with Baillie in the pool...his survival was a fluke.

[Andrew D]

But to convict the council worker of attempted murder, you have to prove beyond a reasonable doubt that he specifically intended to kill Baillie. That the council worker "deliberately opened the pool drain with Baillie in the pool" is not enough. That fact is entirely consistent with the claim that the council worker simply did not care whether Baillie lived or died. And not caring whether someone lives or dies is not the same as specifically intending to kill someone.

I am not saying that the council worker did not commit a crime. On the contrary, assuming that the article in the opening posting provides an accurate picture of the relevant facts, the council worker appears to be guilty at least of reckless endangerment, may well be guilty of battery, and may also be guilty of various other crimes which do not occur to me at the moment.

But attempts are in a special class of crimes. They require the specific intent to bring about a particular result. Attempted murder requires the specific intent to kill someone.*

Maybe contrasting attempted murder against murder will be helpful. Attempted murder requires proof that the defendant specifically intended to kill the victim; intending to cause the victim serious bodily harm is not enough. Murder, in contrast, does not require proof that the defendant specifically intended to kill the victim; intending to cause the victim serious bodily harm is enough.

Suppose that the prosecution can prove the following: I was pissed off at you for something or other, I decided to "teach you a lesson" by smashing your skull with a baseball bat, I did so, and there was a substantial possibility that by smashing your skull, I would have killed you. But you did not die.

I am obviously guilty of battery. I am probably of aggravated battery or whatever term the relevant jurisdiction uses to describe especially serious batteries. And I may well be guilty of a host of other things. (Assault, use of a deadly weapon in the commission of a felony, and whatever else the prosecutor can think of.)

If as a result of my smashing your skull, you had died -- bleeding out, clot stopping the heart, myocardial infarction, whatever -- I would be guilty of murder. I struck you, I intended to cause you serious (or grievous or however the law of the relevant jurisdiction puts it) bodily harm, and I caused you to die. That's enough for murder: I did the act, I intended to cause you serious (etc.) bodily harm, and my act caused your death.

But you did not die as a result of my smashing your skull with a baseball bat, so the prosecution has not proved me guilty of attempted murder. Yes, I intended to cause you serious bodily harm, and if you had died, that would have been enough to make me guilty of murder.

But to convict me of attempted murder, the prosecution must prove more than that I intended to cause you serious bodily harm. The prosecution must prove that I specifically intended to kill you. That is, the prosecution must prove that I specifically intended to bring about the result that would have resulted in the successful commission of the crime which I am charged with having attempted: The specific result which would have resulted in my successfully murdering you would have been your death, so the prosecution must prove that I specifically intended to bring about your death.

Intent is, of course usually proved by circumstantial evidence. (The only other way to prove it is by admission; we cannot read a defendant's mind.) Sometimes, the circumstantial evidence is readily convincing. If the prosecution has several witnesses who testify that I said "I'm going to kill that bastard" right before I attacked you and smashed your skull, that will almost certainly be enough to prove that I had the specific intent to kill you. And there are many cases in which the circumstantial evidence has been found (and upheld on appeal) sufficient to prove the requisite specific intent.

But the facts given in the article quoted in the opening posting are not enough to prove that the council worker intended to cause Baillie's death. Indeed, those facts are not enough to prove that the council worker intended to cause Baillie any harm at all. What the facts -- and again, this is based entirely on the article; there could be other facts to which I am not privy which would change the legal landscape -- show is no more than that in a mind-blowing act of stupidity, with reckless disregard for the risk of injury and even death to Bailiie, and acting in accord with some existing "practice," the council worker caused Baillie to suffer injuries and put Baillie's life at risk.

Again, I am not saying that the council worker is not guilty of a crime. I am just saying that although the council worker may be guilty of various crimes, based on the facts presented to us, attempted murder is not one of them.

-------------------------

* One reason for the difference in the intent required is, of course, the difference in the result of the defendant's act: Murder requires that the victim be killed, whereas attempted murder is predicated on the fact that the victim survived.

Dovetailing with that is our reluctance to treat attempting to do something as equivalent to succeeding in doing that thing. After all, if we were to treat my attempting to murder you as equivalent to my successfully murdering you, wouldn't that mean that, in the metaphorical "eyes of the law," your life -- whether you ended up dead or alive -- was of no significance?

Flipsiding that is our reluctance to make the outcome of a criminal act engaged in with evil intent depend on happenstance. If the defendant deliberately tried to kill the victim, why should the severity of the defendant's punishment depend on the defendant's marksmanship?

The upshot of those countervailing considerations is the general rule that an attempt to commit the crime X requires the specific intent to bring about result of the crime X, whereas actually committing the crime X requires only the intent to do something bad (or, sometimes, merely the intent to do anything at all) which brings about the result of the crime X. Attempted murder requires proof that the defendant specifically intended to kill the victim (or, sometimes, specifically intended to kill someone else and ended up killing the victim); murder does not.

[SisterMaryFellatio]

''It's one of the most unhealthy places you could ever have the misfortune to visit,''

I've been in a few bars like that....

lol me and you both!


Had I have known we had been in the same bars I would have bought you a drink.....

Obviously the author hasn't visited some of the dwellings I have had the ...pleasure... of visiting during my work.

One place in Cornwall....

Redruth???

[Miles]

LJ,have you ever been in a bar with a dirt floor? I have............what a dump.

[loCAtek]

You were in Mexico, recently? Should've called me!

[Gob]

Had I have known we had been in the same bars I would have bought you a drink.....

Obviously the author hasn't visited some of the dwellings I have had the ...pleasure... of visiting during my work.

One place in Cornwall....

Redruth???

I was actually thinking of a house in Hayle.

But the whole of Redruth would also fit the bill.

[Jarlaxle]

Central Falls, RI...it's the armpit of the state.

Was once in the Guinness Book Of World Records...for having the most bars per square mile. (The city is 1 square mile.) It lost that title a while ago, but it's still a dump.

[Lord Jim]

LJ,have you ever been in a bar with a dirt floor?

Miles, I've been in a couple of bars where a dirt floor would have been an improvement...

I was in a bar in Angeles City in the Philippines once, where there were a couple of huge, (I'm talking nearly beaver sized ) rats were wandering around, and I was the only one in the place who took any notice....

The bartender thought it was funny that I found it upsetting....

[Jarlaxle]

That place sounds like the reason napalm was invented...

(Mental note: do NOT let LJ pick the bar.)

[loCAtek]

OK, I concede(gladly), that PI is nastier than Mexico.


...maybe 'cause our rattlesnakes keep down the ratón.

[Sue U]

... how much compensation will be due to Mr Baillie, would could have lost his life in a number of ways, after this incident?

If the this case were in the U.S., the answer would be "little to none."

First, because the negligent party was a public employee, the rule of sovereign immunity would initially bar any claim in toto; statutory exceptions to sovereign immunity frequently require some higher standard of negligence and/or some threshold level of serious injury before a claim is even permitted.

Second, even if the sovereign immunity bar could be overcome, Mr. Baillie simply suffered no serious or permanent injury. He had some cuts, scrapes and bruises, but no broken bones, no hypoxic brain damage, no disfigurement. In short, there is no compensatory "value" in objectively minor injuries that heal in a few days.

For those of you who think the U.S. system somehow encourages personal injury claims for "easy money," this should serve as an object lesson of just how difficult a "simple" and "obvious" case can be.

I wouldn't touch this case with tongs.

[Miles]

LJ, I know a bar about 8 miles from my house where the rats are at least the size of an over weight miniture poodle. Going to the bathroom is best accomplished outside.

Edited to add:BTW the name of the place is "The Dew Drop Inn". (no joke)

[oldr_n_wsr]

Regarding the opening article of this thread, how is it that the pool did not have a grill in place inside the pool to keep people from being sucked down the tube? Had this been in the states I would guess there would be a few violations of building codes regardless of when the valve was opened.

and for the rats in bars, saw a few poodle sized rats at more than one bar in Bedford Styvesant back in the late 1970's. Even saw a guy pull out his pistol and shoot one one time.

[Gob]

Sue, that's an eye opener!

I would have expected the opposite, thanks for the education.

[Scooter]

Regarding the opening article of this thread, how is it that the pool did not have a grill in place inside the pool to keep people from being sucked down the tube? Had this been in the states I would guess there would be a few violations of building codes regardless of when the valve was opened.

That might have made for a worse result in this case. Rather than being dumped out of the tube in a matter of seconds, the suction mght have held him stuck to the drain for a matter of minutes, until the pool was almost drained, and he might have drowned.

I'm not disagreeing that there should be a grill in place, but in this case the guy was exceeedingly lucky.

And thanks to Andrew for the legal analysis, to which I would respond that whatever crime the worker can be charged with, I would hope he has to serve the maximum. Draining the pool when you know there is someone still in it? You have to have been born with an extra helping of stupid.