As a follow-up on the two people who died recently in a storm drain in Australia – nicknamed “The Fortress” – a couple of interesting comments have been left, in all places, on the Wikipedia urban exploration talk page. Coming from an Australian fellow named Jachin, they raise the always thorny subject of what is in this country referred to as “attractive nuisances”, and the legal liabilities that come from badly or ineptly sealing the same. Local folks might remember the three teenagers who died in a smoke-filled cave in Saint Paul a few years back, and the very, very similar discussions that raised.
Anyway, in Jachin’s words:
[I]n relation to the Lurline Bay incident[,] I brought it to the attention of Randwick Council and the Police that their answer to ‘look into ways to secure the drain’ was inappropriate and given that the majority of manholes and gutterboxes to that network have been tacked shut with a welder, it could easily be said that Sydney Waters attempt to ‘secure’ the drain is the reason that two people died, and urban explorers attempt to break into the drain by bending the bar at the end many aeons ago which the third (lucky) person was ejected through in the flash flood is the only reason it’s not three fatalaties we’re dealing with.
I have been in contact with a group called The Tunnel Rats who will be assisting me in making representations to the state coroner on the issue. Given the egg shell skull principle and the fact it is reasonably foreseeable that people WILL access the drain, sealing all potential emergency exits amounts to negligence which in this instance occasioned death. The idiocy, culpability, assumed risk, et cetera, of the people who went in there is clearly not negated by any court within the Westminster legal system by the fact that all the exits were welded shut.
One equivilent that could be put forth is, if you are the owner of a .. derelict movie theatre on a block of land, and decided to reverse the firedoors push-to-exit system (let’s face it, a claw hammer breaks a weld to get in, but from underground getting out nothing would break those welds) and people get trapped within your property and it burns down, you are entirely culpable with a non-delegable duty of care to provide an exit to those people even if they are breaking the law. This is the grounds that many people bitch about ‘a burgler fell on my property and sued me’, however it is NOT that simple, there has to be negligent action on behalf of the owner, so if the burgler fell, but only fell because the owner had a pit trap full of punji spikes, then yes, the owner WILL be found negligent.
Make of that what you will.