You must be nuttier than I!
 
Why would you want to?
 
Sure, go ahead... make a fool of yourself!
 
Boris
 
 
----- Original Message -----
From: [log in to unmask] href="mailto:[log in to unmask]">Stefan Wasilewski
To: [log in to unmask] href="mailto:[log in to unmask]">[log in to unmask]
Sent: Sunday, January 09, 2011 2:52 PM
Subject: Re: Any assistance on this?

Thank you. Can I quote?


On 9 Jan 2011, at 16:35, Boris G Freesman, Q.C. wrote:

Well, then, let me offer an example:
 
    Mishna: "Do you think the rain will hurt the rhubarb?"
 
    Gemara: "Not if it is in cans."
 
    Pulpil: "What if it rains can openers?"
 
( ;-}>
 
Boris
 
 
----- Original Message -----
From: [log in to unmask] href="mailto:[log in to unmask]">Stefan Wasilewski
To: [log in to unmask] href="mailto:[log in to unmask]">[log in to unmask]
Sent: Sunday, January 09, 2011 11:24 AM
Subject: Re: Any assistance on this?

Yep, reading and learning too!


On 9 Jan 2011, at 16:20, Boris G Freesman, Q.C. wrote:

p.s. In case anyone is reading and may be confused, I don't know how the word "Mishna" in my email got converted into "Mishap" -- spell-check, no doubt! But it is "Mishna" that is/was intended.
 
Boris
 
----- Original Message -----
From: [log in to unmask] href="mailto:[log in to unmask]">Luc Hoebeke
To: [log in to unmask] href="mailto:[log in to unmask]">[log in to unmask]
Sent: Sunday, January 09, 2011 10:47 AM
Subject: Re: Any assistance on this?

Dear Boris,

The study of law is not making judgments: it is the study of law to help you once you are confronted with the task to judge your neighbour. And you refer rightly to Talmudic tradition which always leaves open the "final" answer.

Kind regards,

Luc


Op 9-jan-11, om 16:29 heeft Boris G Freesman, Q.C. het volgende geschreven:

Luc,
 
There is nothing wrong with Harvard's "case method" as applied to the study of Law; I don't know how it might get perverted by applying it to Business.
 
Indeed, it is almost identical to Talmudic methodology in which you first articulate the issues (Mishap), then try to derive the general principles (Gemara) and then examine the specific case and consider the various permutations and combination of the facts and issues (Pilpul) in order to find an appropriate answer.
 
Am I missing something here?
 
But I do, in a sense, agree that it is "impossible to judge a "case" without the testimony of the people involved" -- in the sense that (at least in those times) the people involved have the most accurate and reliable information about all the relevant facts... unless, of course, they are liars or stupid! Even so, the Talmud
stipulates in most  "cases" that the testimony of independent witnesses is required.
 
Boris
 
----- Original Message -----
From: [log in to unmask] href="mailto:[log in to unmask]">Luc Hoebeke
To: [log in to unmask] href="mailto:[log in to unmask]">[log in to unmask]
Sent: Sunday, January 09, 2011 9:04 AM
Subject: Re: Any assistance on this?

Dear Russell,

After a "risky" walk on 50% icy, 50% muddy pathways and having passed the ordeal without harm to myself or my wife, not to talk about fanatic cross-bikers in the same environment, I join the "case".

1. Making a differenece in accountability and responsibility as I wrote in my article about responsibility in networks at least has the advantage to differentiate between the ethical dilemma and the "law".

2. Regarding Solomon, I can refer to my commentary of the Decalogue referring to : thou shalt not give a false testimony regarding your neighbour. Which makes it impossible to judge a "case" without the testimony of the people involved, here at least B and D. This permitted the wisdom of Solomon, who fortunately was not perverted by the "case studies" a la Harvard Business School.

3. Which comes to my criticizing the tool "case" which apparently was used by D and fortunately fired back on him so that he can become a bit wiser not to put "cases" to a virtual public. There I refer to what I wrote in Making Work Systems better about the dynamics in the value-systems domain, the domain of politics and judgments. What D and you also did was a too quick jump from the concrete and specific situation, which is the anecdote at hand, to the general and abstract quadrant without passing through the necessary contextualizing and specific concrete area. (Figure 6-2 of my book and its commentary).

In relation to Frank's do-gooders remarks, I only want to do some good on the case by giving you some home-work :-)

Kind regards,

Luc




Op 9-jan-11, om 14:38 heeft russell_c het volgende geschreven:

Just to clarify your comment -- D posted his views using the case study (basically as given although worded differently) and then the reactions started. 

D was strident in rebuttal and it all ended up mirroring itself mostly!

Again, a dance of shadows really.

D's stridency was that he was not strident. 

Not really focused on D's motives ... that is where the pack went.

Was he right in his stand -- or at least not-wrong (entirely)?

rc

On Sun, Jan 9, 2011 at 9:23 PM, Stefan Wasilewski <[log in to unmask]> wrote:
On D's motives; strident views post a drubbing on the web usually means his original self-responsibility feelings weren't that good and he's found someone else to support him as a crutch even though those ideas are badly grounded.


On 9 Jan 2011, at 12:50, russell_c wrote:

I though I saw A in there somewhere.

Anyway, my take is this: if you are in a reductionist paradigm then you have no choice but to come to a conclusion such as you have.

However, if your world view is not reductionist -- or not so wholly reductionist (see Stafford's first few minutes on Aristotle in Javier's video) then things are not so clear. 

In this 'not-entirely reductionist' paradigm, I contend that the only condition is that not everything can be wholly reductionist, or by definition 100%. 100% does not exist on this earth except as an aspiration (for the unwell usually).

It seems to me D is holding out on a strongly constructivist argument and likely to end up being given hemlock!. 

rc



On Sun, Jan 9, 2011 at 8:39 PM, Frank Wood <[log in to unmask]> wrote:
Hi Russell.
I was talking about B the trainer and D the kite flyer only and as far as I can see I didn't get them mixed up.

As you say the core issue is responsibility and we can only be responsible for our own actions not others. That maybe not the legal case but sure is the common sense case!

Yes D is right to highlight the problem of interfering do gooders as long as he does not try to dilute his responsibility. In other words he should stress that he is responsible for his actions and not B.

If you are driving a car and crash cos you are distracted by one of  your passengers then you cannot blame the passenger! Even if in law the passenger could be accused of distracting you that cannot absolve you of blame (yes I say that non PC word "blame")

It certainly stimulated discussion! :-)

Frank



On 9 Jan 2011, at 12:06, russell_c wrote:

Frank,

You voice is well represented in the debate. 

I think you may have got you A,B, and Cs a bit mixed along the way, but yes, the core issue is whether D can claim some shared responsibility with another adult B who was there only to earn money -- and the 'expert' advice unsolicited was incorrect.

If it had been correct information then maybe D would have reacted differently. Perhaps D thought wtf and who is this idiot. Perhaps D should have ignored the noise. Perhaps the noise was a young child in his mind? 

All other public risks were in hand as D had checked that and was in fact in a practice session to do what he was doing. In previous trials the safety release device was activated. This time it got away. VERY tight timing involved. 

Look I think we can assume D is not trying to dodge the issue of being a dill (although others may see it that way). Rather, he is perhaps trying to highlight (in the forum) that B (and those in her position) has to be very careful. The same thing could be a personal trainer in a park, or yelling out to a young woman nervously trying to turn right across oncoming traffic with a baby in the back seat. I think it is close to public nuisance. Perhaps the next D could be a rather aggressive user of the health services! I suggested that the next D scenario could be an American tourist (there are plenty of Swiss and Germans down for the winter break) and s/he would be (of course playing on the archetype) far more likely top be legally orientated -- especially of s/he had broken their neck or something.. 

The intent to submit the case study was to stimulate discussion on risk of dealing with dangerous performing show ponies on a busy beach -- not a learner in a quiet isolated space-time zone. But the response was so strong a note book and pencil just had to be taken out. The whole thing got hijacked due to the 100% issue. I suspect that may have suited some interests. 

Russell

On Sun, Jan 9, 2011 at 7:42 PM, Frank Wood <[log in to unmask]> wrote:
I would say that the responsibility rests entirely with D.

1. If he was aware of his actions he would KNOW that the bar was the right way up

2. If he was concentrating properly on what he was doing he would not allow himself to be distracted.

When I used to play tennis people could be doing anything around the edge of the court and I would not notice. However the mind is always primed for danger signals and clearly B's comment was not a danger signal as I have already said he would have known the bar was the right way up.

It appears that B is a control freak and cant' resist interfering and also I suspect there was a show off element to c in her intervention.

As a general rule of thumb it is best to not offer help to people unless you are asked. Sometimes when people offer me unasked for help I'm tempted to snap at them and say "Did I ask for your help!"

So the responsibility was entirely A's and he is wrong to try and dilute the blame by saying it is shared responsibility.

Now if he had gone up to B and shouted at her etc then B could not complain as this would not have happened if she had not interfered.

Each person is responsible for their own actions, shared responsibility is a cop out term.

That is not a personal attack but rather an obvious observation to anyone who accepts the idea that we ALL have to accept responsibility for our own actions.

I suspect the outrage on the forum may be cos people felt that D was trying to wriggle out of the fact that he was 100% (as was put on the forum) responsible for his actions as B was 100% responsible for her own actions.

It would be interesting to know what B's comments were (if any).

Looking at it from the viewpoint of Primary Cause, it could be argued that it was B's fault as if she did not interfere then none of this would have happened. However that ignores the fact that if D was properly focussed on what he was doing this would never have happened.

If kite flyers can't be focussed o;n what they are doing then why are they flying kites in public places?

IMO D has given a lot of ammunition to those that want kite flying on beaches to be banned. Another reason maybe for the outraged reaction on the forum as the members possibly felt that he was doing them no favours.

Frank



On 9 Jan 2011, at 08:46, russell_c wrote:

One for the legal beagles.

There is no legal matter in this -- it is just a case study (based on actual events) in which I would like to clarify one fact: shared responsibility and risk.

I only need an answer to feel more confident in my discussions with others on this case study.

I don't need legal opinion -- but I just would like to know whether in general principle my point about some degree of shared responsibility is valid -- or at least a grey area needing some arbitration.

The contention is between two world views: one that holds a 100%:0% 'blame' paradigm; and one that holds a shared risk paradigm somewhere (but not explicit) in the range of 99%-1%.

The debate is not legal (although it is ultimately a legal issue if pursued - which is not in this case): it is philosophic.

It is just a case study but I'd like to know more clearly whether I'm correct or not. I hold the shared responsibility view (around the 80:20 range). The principle is the focus -- not the actual values.

Situation:

A -- a small company selling kitesurfing equipment and providing training services via 'sub contractors' who ply their trade on a public beach.

B -- Trainer walking on public beach with C in a training session.

C -- personal being trained by B through a contract with A.

D -- Independent person on the beach in an activity with some physical risk to D (only). No risk to others by virtue of ensuring no other public are close by in direction of wind and potential risk zone if event fails.

D has no relationship with B or C. (and in fact never met)

D has some historical commercial relationship with A.

B is wearing a top wetsuit vest that subtly identified her as a trainer for A.

B and D have never met before although D has observed her in the distance training others.

The location is in D's local beach area less than 0.7km from house. A, B & C most likely travel to the location from elsewhere.

There is no suggestion of fowl play or poor intent by any party -- merely poor communications, timing and lack of understanding of shared risk at that time (by B) in a public place with respect to D (and others in same situation).

At a critical moment in D performing an act (e.g. launching a large kite), B (with C in tow) calls out to D from behind (and to the side a touch) that the "bar is around the wrong way" or words to that effect. D did not realise B was there or only slightly noticed from corner of the eye just moments earlier. B & C were walking along a beach where small sand dunes blocked D's view of their approach.

This causes D to hesitate at a critical moment of launch, look down and check the bar (held in the hands to control the kite via 4x25 m strings.) D finds the bar is                          not around the wrong way. D wonders what B is talking about and replies that he basically 'knows what he is doing' (or at least that the bar is correctly held). The kite lifts abruptly and D is slightly off balance due to B's interruption. D is pulled to the ground , hurts ribs and breaks kite string. D contends that this may or may not have happened without B's uninvited interruption to his private activities on a very deserted public beach (i.e. no risk to others). No one will ever really know.

No other party is hurt or was put in danger. D was learning the ways of the kite. Perhaps the kite was not positioned well with respect to wind. However previous self launches by D had been performed and worked ok. Winds were a touch stronger than perhaps wise to launch in by D -- but not excessive.  Position of kite with respect to wind could have been better. There was risk but calculated (maybe poorly in hindsight).

B & C walk off.

D recovers from the spill and packs up equipment and returns home via the premises of A (close by) where the equipment was purchased and where original training was provided (but not by B).

D claims that B (as A's employed contractor/employee) is partly responsible for the event due to interrupting D without invitation and by sending incorrect 'expert' information at that time (the bar was not around the wrong way).

D's original 60:40 shared risk view includes a belief that risk is also to A by virtue of employing B (i.e. commercial law etc).

D and A agree that 70%:30% (D:B) is reasonable.

A agrees to sell D new strings for large discount just above cost. A & D agree this is fair. (basically reflecting the 70:30 split)

D suggests to A that he advise young B that next time she should be more careful about approaching members of the public while on duty. D suggests some skills training for B so that opening communication can be more polite and in the form of a question -- e.g. "Excuse me, can I assist..." (or words to that effect).

A week later in the same place, under similar conditions (but lighter winds and with better kite position etc due to advice from A to D on how to do it better), B walks past and offers to help launch the kite for D. There are no hard feelings and no other communications (D and B are approximately 30 metres apart due to length of kite strings). Standard 'ok' & 'thanks' hand signals are shared by D & B.

There is no issue. Both A, B & D seem to have learned something.

Some weeks later D relates this scenario in a public forum which is discussing risk on public beaches in respect to 'Show Pony' behaviour that places the public at risk. Public outrage with the 'sport' is rising in the wider community due to bad high risk behaviour by certain experienced people.

D receives a public lashing by many people in the small Internet community (but not all) for the suggestion that risk was shared in this complex situation of concern outlined above. Heated debate and bullying attack on D ensue over an extend period by a strident section of the Internet fraternity who believe that 'Blame' is 100% with D as a 'fact'. No one claims to be a legal expert -- it all looks and sounds like opinion.

Question: Can D claim that risk was shared in that situation of concern -- or at least that it is a grey area that would need arbitration etc to resolve?

D's issue is not with B or A.

Rather it is with the mindset of the rabid Internet forum attackers who seem unable to consider the situation and who continue to attack D at a personal level from the 100% blame position. It appears to be a very strong blame culture. This community may also have higher insurance premiums to pay if they find out they do share risk in some public-private interaction (especially when commercial trade is going on and a 3rd party is affected). Many of these 'voices' are probably trainers as well.

The purpose of D raising this scenario was to develop open discussion. A lot of noise was developed (charge & rebuttal) but not much information or answers. The original Show Pony situation was completely left discussed and unresolved. The Show Pony problem seems to have been raised numerous times before and remained a hot contentious and unresolved item.

The kitesurfing community claim to be extremely concerned with self governance and not being pinned down with outside control and regulations "like elsewhere in the world". Certain 'voices' in the Internet fraternity claim this is because of good work by the local association of members which also provides public insurance to members and requires members to agree to indemnity conditions that seem to protect all office holders and all members form challenge.

After further analysis of the situation (of the internet community reaction) D concludes this is largely because the local context is in a time warp and that soon there will be public outrage and clamp down as it has occurred in other parts of the world..

Any comments or hints on the original 100% vs shared risk responsibility issue most appreciated.

Nothing will be quoted or ascribed. Email to me 1:1 if more appropriate.

Thanks anticipation.

Russell




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