Caso nº 5 de evaluación de un conductor con limitación funcional total EE.II. izquierda

To abandon a small dam which may have outlived its usefulness or economic life can sometimes mean more than simply walking away from it. When an owner chooses to abandon a small dam because it is no longer useful or is too costly to manage or rehabilitate, the dam should be made incapable of storing any water (either temporarily or permanently) which may constitute a risk to life or property. The dam owner is still responsible for ensuring the safety of residents and development downstream, and for the dam itself, while it is in the process of being abandoned. Breaching a dam is a complex operation. First, the un-breached sections must be left in a permanently stable condition. The breach must be wide enough not to impound significant quantities of water under flood conditions. Finally, the short and long-term stability of any sediment deposits within the storage area must be considered before commencement of the breaching operation.

Breaching should not be attempted while there is any water in storage, unless expert advice is first obtained. Environmental aspects downstream must also be considered prior to a dam being breached. It should be noted that the costs of rendering an

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abandoned dam safe (particularly against storm and flood events) can often be quite considerable. For any dam being abandoned or breached, professional engineering advice should be obtained.

10.5 DESIGNER AND EARTHMOVING CONTRACTOR(S)

The trend in recent negligence cases in Australia indicates that, in the case of extremely hazardous activities, professional engineers, statutory bodies and others are required to give a guarantee that no physical harm results from the conduct of their activities (Wensley, 1995). However, it is clear that it takes relatively extreme circumstances to require a guarantee of safety, as the case of Cekan v. Haines shows, with particular reference to the question of how far a government is required to provide resources to reduce a foreseeable risk of harm. In that case, the plaintiff received self-inflicted injuries while in a police cell while intoxicated. He sued for damages. The trial judge found that the Government, which conducted the establishment, did owe a duty of care to the plaintiff but that that duty had not been breached. All members of the Court of Appeal took into account the fact that it would have been very expensive to redesign the jail in question Ñ and by extension of the argument, all the jails in New South Wales – to prevent the type of injury which had occurred. They emphasised that even governments have limited resources and must make choices on the basis of the overall common good.

The proprietors and designers of large dams are not the insurers at law of those who may suffer physical or economic harm should something go wrong. Nonetheless, the boundaries of the law of negligence are being pushed wider all the time, and because of the extreme consequences which would follow a dam failure or over-topping, a very high standard of care will be imposed upon such persons (McMullan, 1995). Therefore, dam owners and designers must assess carefully the risks involved in the design and maintenance of such structures, and take particular care to ensure that risks, even if mathematically quite small, are minimised or managed.

The law of contract is also largely concerned with the enforcement of duties that one person has, by agreement, bound himself or herself to perform for the benefit of another. The law of torts (civil wrong) may also be seen to be concerned with breaches of duties. Those duties are not established by any agreement between persons but rather by the law itself. Thus there are, for example, duties not to assault another person, not to trespass on another’s land, not to take another’s goods, and to take care not to injure one’s neighbour. Some duties are laid down by legislation; others are found in what is known as the common law, that is, the rules that judges recognised in the past as being necessary to enable society to function as harmoniously as possible and which judges still recognise.

10.6 PROPERTY INSURANCE

A dam owner can directly and indirectly influence the consequences of dam failure by purchasing insurance to spread costs from a single dam owner to others. Insurance may provide liability and asset protection and is important for dam owners. The level of

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insurance carried should be based on value of facilities at risk, potential downstream impacts, condition and age of the dam, likelihood of an incident occurring and the cost of available insurance. Insurance spreads risk among a large group of people and provides a measure of protection for the person or organisation owning the dam, which may be held personally liable. Types of coverage, availability and cost will vary from time to time, so it is advisable to seek professional advice when considering the purchase of insurance. Some insurance companies and brokers specialise in issues related to dam failure. Recommendations of insurers can normally be obtained from insurance industry representatives. Not only can damage and liability be covered but also the cost of business interruption and lost income. Insurance can spread, and reduce potential loss and therefore should be an accepted cost of doing business. Many people have avoided this cost and have paid severely for their short-sightedness (USDA, 1969 and FEMA, 1987).

References and suggested