Human Sacrifices For The Safety God

Stephen Franks Speech to Mid Canterbury Grasshoppers; Ashburton; Monday October 11, 2004.

When we landed in Christchurch this afternoon the hostess told us not to release our belts, "for our comfort and safety". Apparently a long ago inquiry after a taxiing collision showed that some injuries might have been prevented if people had not already released their belts. So now we all get this instruction. It is probably really to stop us from prematurely opening lockers, but personal safety is the trump card. Who dares challenge it?

Remember the plane held up a fortnight ago to force a child to wear shoes? The safety claim was truly ludicrous. Why issue flight socks to business class passengers, or insist on shoes-off to slide down the escape chute, if shoes were a safety necessity? But invoking the "Safety God" works. Everyone knows to pay lip service. It's easier to post signs warning that the floor is slippery when wet, that hot water may burn, that ladders can tip over, that chainsaws may cut, than to argue. Everyone excuses the disfigurement of useless signs. Arguing is too much hassle.

I'm guilty of fake worship too. There is a shameful notice at the gate to my farm. A large orange square says "Warning Hazardous Area". Then it orders all visitors to report to the manager for safety instructions and warnings. The farm is no more hazardous than the rest of New Zealand. There are some wild cattle in the scrub. There are cliffs and ankle turning boulders in the riverbed, and slippery slopes and sharp sticks and bits of wire, and a quad bike, and motor bikes for which helmets are supplied etc.

So it is a hazardous area. Why then did I describe the notice as shameful? It is back covering, designed cynically to ward off evil legal spirits, and judicial devils. It will not change the accident rate on my property. When the pig hunter bounds down the hill to the bailing dogs, leaping over logs and crashing down banks, my orange notice will not make a blind bit of difference.

I'll go further - I regard these familiar warnings as a blight. They are not just amusingly self-serving and obvious. To me they lower the country's integrity. They make us all complicit in cynical make-believe. They are more sinister than a social white lie, because they are intended to avoid legal liability. If the law is honest, they make us all a bit dishonest.

We know that warnings are often idle. Even 100 percent commitment to safety compliance will not guarantee no error or omission. And one could in hindsight be found to breach some duty of care.

The Project

I want to outline to you a project to rid New Zealand of the blight of back covering warning signs. More importantly I want to roll back the mudslide of law and liability and anxiety. These warnings signs are just a symptom. If I can succeed with this project it will make my time as an MP worthwhile.

My project is a challenge to the Safety God. I want to restore personal responsibility, commonsense, and the freedom of adults to take risks.

Let me begin with a quote from an article last week by Spectator magazine editor Boris Johnson:

"It is a sign of the decline of any great civilisation that its people begin to worship strange gods. Now we have a new divinity that commands the adoration of the governing classes, as nannying and multiple breasted as Diana of Ephesus. Her name is Phobia and sacrifices are being made at her altar."

They are human sacrifices. Mr Johnson was driven into print by recent fatal shootings near Henley where police officers were not allowed to go to the scene for 64 minutes. Two women bled to death. No paramedics were allowed in until 87 minutes after the first call to the police. Meanwhile frightened members of the public went to the aid of the injured. They used their mobiles to report to the police that the killer had decamped. Two brave neighbours cradled the dying women in their arms. Emergency services continually assured them over the telephone that help was on the way when it was not. The lie was to cover the shame of not admitting that help was frozen by police rules determined to stamp out risk by leaving no room for individual initiative or even for commonsense.

While I've been an MP, New Zealand has had two similar experiences, but unlike Britain there was no public outcry or enquiry. A woman died slowly of gunshot wounds in a Fielding house, begging for help on the phone, after the killer had left. Police refused to let anyone near the house. Not long after that a constable died on the front lawn of another Manawatu house, while police stood clear in case the killer was still there waiting to shoot more police.

I made myself unpopular by asking the Police Minister questions. The responsible officer treated them as insults to police courage. I received messages through friendly officers to back off, or ACT would suffer. I also asked why our police were not equipped with transparent Kevlar ballistic shields, to enable them to rescue their colleagues under fire. While few shields will stand up to high velocity rounds, the answers to all the questions were grudging and incomplete. They were evasive bumf.

Police are now also humiliated victims of the idea that nothing is worth risking life and limb for, that every injury must be avoidable. They appear to have swallowed the view that injury is evidence of the fault of someone, preferably a superior who must be pilloried, to ensure that it never happens again.

Valour is for Mugs

What has gone wrong? Are our police less courageous? I believe not. But they repeatedly emphasise that valour is for mugs. Whenever some brave citizen stands up to a robbery, or an attempted rape, any media praise is followed by a police warning that it was nevertheless foolish.

People in rural areas get the same fatuous advice: "Don't aggravate them, don't try to defend yourself, just call us or try to get away, don't take the law into your own hands", notwithstanding the practical impossibility of police help arriving in time, if the criminals are bent on mayhem.

Kiwi Culture

My project is to reinstate respect in our law for Kiwi culture. Certain principles underpinned the culture we thought of as distinctively ours:

• They made us trusting and confident, curious about our world, number 8 wire inventive

• They made us irreverent, yet courteous and kind

• These principles made our soldiers proud of being self reliant, able to exercise individual initiative, yet responsive to good leadership, and stoic, when they compared themselves with others.

They are not mysterious. They require that:

• People take responsibility for the consequences of their own actions, for the maturing of risks they have clearly accepted

• We honour those who put themselves at risk for the sake of others

• We recognise that people will not volunteer to help others if harsh hindsight judgement will flow from failure to adopt best practice.

These principles were deeply embedded in our law as recently as 35 years ago.

Victim Culture Principles

Now they are in a head-on clash with the principles of the victim culture. The victim culture holds that if there is a law that would save only one person from horrible injury, it must be worth it, that fences at the top of the cliff are better than ambulances at the bottom, even where people want to climb on the cliff, or where the only place for the fence is miles back from the edge.

The victim culture is contemptuous of the notion that in a free society adults should be entitled to choose conduct that could harm them. To those who gain power by claiming to protect victims, superiors must make choices for them, because even apparently informed choices are conditioned by unequal bargaining power, the victim's class, information, or upbringing disadvantages.

The victim culture does not believe that anyone other than bosses have true free will. All others are neither wise nor free enough. Inferior status invalidates free choice. It becomes unfair to let natural consequences follow even stupidity. Wise and caring rulers must identify and punish bosses who might have stopped a sad outcome if they had properly used their superior power.

The victim culture finds quaint the core English law inheritance that free people may do anything that is not expressly forbidden by clear law. It replaces that with broad requirements and discretions. They subject all actions to requirements for prior compliance authorisation, or hindsight review driven by risk phobia.

We see the Government preoccupation with finding or creating victims, transforming New Zealand from a forward-looking "can-do" society into a nation of whining losers. Limitation periods once discouraged crying over ancient spilt milk. Judge-made law protected volunteers from liability for unintentional harm except in extraordinary circumstances.

Criminal Law as Primitive Tort

The criminal law was largely reserved for deliberate or intentional harms. Now, with the ACC scheme having ended personal injury claims, judges and lawyers are using the criminal law to strike back. They are recreating a primitive and oppressive new law without the commonsense refinements of tort law.

The OSH credo of "blame the employer and down with personal responsibility" recreates feudal notions that servants are oxen for their masters, and that masters must answer for servants actions, even outside any purpose for which they were employed.

Examples

And so we have the long catalogues of recent nonsense:

• Swimming pool fences while nearby lakes streams ditches and ponds remain unfenced

• Cycle races being cancelled because organisers cannot afford the traffic management plans, the marshals or the insurance risk premia to carry on

• Lolly scrambles turned into handouts, in case a child cops a lolly in their eye, or is trampled in the rush

• School adventure playgrounds wrapped in cotton wool to eliminate both risk and challenge so there is no adventure left

• Astrid Anderson spends $200,000 to unsuccessfully defend against the police expenditure of as much as $1 million in establishing "criminal nuisance", before legal aid helps her get the Court of Appeal to reinstate a requirement for actual knowledge of the risk and recklessness before conviction

• Employers punished for failure to save even their own safety supervisors from their own foolishness in not using safety gloves expressly provided

• School kids going on bush camps or river swimming or other EOTC, only from schools lucky enough to have teachers who will still carry the risk, or wealthy enough to pay professionals who will prepare the risk management programs needed to cover the backs of boards and staff.

• RSA Anzac marches around the country are threatened by local authorities until they flatly refuse to panic into risk management.

• Coroners feel bound to pontificate about extra caution and rule changes every time there is an unfortunate accident

• Every complaint of long ago harshness now excites a frenzy of demands for formal inquiries and claims for compensation, while lawyers salivate. There's no evidence that disturbing the mind's sleeping dogs, perhaps inventing "recovered memories", helps more than it harms. Nor is there evidence that lawsuit compensation heals wounded minds. Yet.

Consequences

The consequences are not just such obvious ones:

• When the law can't even guarantee a prompt response to deliberate criminality, to a 111 call for help, it simply irritates New Zealanders to see top police and prosecution resources being poured into hounding folk who set out to assist others, or in holding up thousands of travellers while accidents are minutely measured out

• Children who might have been introduced early on to the potentially hazardous outdoors - like swimming away from city pools - may now have no supervised experience for that for the first, and possibly fatal, exposure to risk as young adults

• When official race organisers are priced or frightened off the market people will still race. But, like "boy racer" racing it will be illegal unauthorised and probably more dangerous

• Every father who hopes someone will run a Scout Troop, take his kids on a bush experience, a kayaking trip, or even volunteer to coach sport where someone could be hurt, is punished when volunteers get the lesson that they could be putting their homes and reputations on the line

• Law punishing inadvertent mistakes steals freedom from everyone else. Liability eliminates the willingness to provide the service. For example, farmers held liable for failing to warn about bulls will close off access to land. Liability intended to protect us steals our freedom to let someone organise something, or to let us do something that could hurt

• When volunteers must be paid to lead we deprive our least well off first. We can't afford to do everything we've traditionally done for each other or ourselves if paid experts can only do them. Paid experts must pass on their costs, including insurance premiums

• We lose humanity when criminal prosecution is automatically considered against decent people in shock over a tragic event. For example, the very first report of a tragic kayaking accident told of how the police cordoned off the site for investigation. It quoted police talk of "the possibility of criminal charges" and the Maritime Safety Authority mentioning options including "prosecution... for reckless navigation". There was no mystery about what happened. Perhaps we can learn something from every accident, but everyone involved was distraught and desperate to say sorry whether or not apologies were called for. Instead they were forced to think about lawyers. The lawyers of course tell them to say nothing, and draft calculated little formal statements of regret

• Officials become legal ghouls, hunting decent and well-meaning people after every accident

• It is not clear that eliminating risk eliminates injury. From the increases in suicide rates and the abuse of drugs (including alcohol and tobacco) it may well be that people have appetites or even needs for risk that get satisfied in other ways when the natural choices are blocked.

My Bill

For all these reasons my project is a Bill to re-establish the common law's respect for volunteers. It would protect them from liability in the absence of recklessness. The standard of care would be based on the knowledge and experience of the volunteer, not requiring more than the normal intuitive care taken in everyday life, by people without risk phobia.

I admit at once that there is no logical reason why only volunteers, particularly in education or sports, should have the benefit of such protection. Commercial operators and employers are every bit as vulnerable to excessive precaution, and that standard is just as rational for them.

The reason for starting with volunteers is purely political. For 30 years the political advantage has gone to those who cook up more law to criminalise well-meaning conduct. The huge resources now poured in to investigations of accidents are a grotesque parody of compassion by the State, but it has been taken as real.

Real human concern would be focused on intentional evil, not accidents.

Nevertheless, it will be easier for people to understand the principles at stake without being distracted by objections from the risk and compliance industry, to the effect that being commercial, or taking money for connectivity, somehow makes it fair and sensible to impose strict or absolute liability.

But wouldn't you want people to protect you?

"Do unto others as you would have them do unto you" does not mean that you want others to be liable and prosecuted if they do not take utmost care to protect you. Each of us wants to be treated as adult, with a right to choose some risk, even some foolishness. We want to be able to eat too much, drink too much, spend too much, and ride too fast, if we choose. We need to have those who would help us judged on the same standard, as we would expect to be judged ourselves. That is we would not expect compliance with our requests, or honest and non-reckless mistakes to be punished.

If we ask that an organiser or volunteer accept liability that is greater than the liability we would ourselves accept, we lose choices. If a neighbour offers to take our children to the beach, all we ask is that they act in good faith, taking the same care they were for themselves or their family. Our side of the bargain is to accept responsibility for misfortune when we would have taken the same risk.

Alternatives

There are other solutions. I don't believe they work. They will, however, be strenuously urged instead of addressing the victim culture. For example:

• Some will urge ever more detailed and careful warnings

• Others will believe that education cures all

• Some will point to the desirability of insurance and careful adherence to compliance codes, while putting caps on liability.

All will be confident of their moral superiority to those who would let individuals choose what risks they want to run.

They would froth and bluster if asked to account for the predictable injuries caused by their own favourite policies. For example, paroled prisoners hurt thousands in robberies beatings and bashings every year. Welfare state sponsorship of pregnancies by entirely unsuitable mothers exposes hundreds of extra children to drug and alcohol riddled pregnancies, and later abuse, every year.

Politicians who believe in the State's role in ironing out human imperfection like to ban things. Smoking, smacking, snacking and walking dogs without leads have been their recent targets. In Mr Johnson's description, it appeals to them to "swaddle everyone in the public and private sector with a great choking duvet of risk assessments".

Those of us on the other side agree with Mr Johnson that "of the crooked timber of humanity no straight thing was ever made, and that it is no business of the State to be endlessly sawing and sandpaper us all into shape. If you try to exterminate all risk, you impose rules that squeeze out individual responsibility." You also wipe out freedom.

If we want to continue to think of ourselves as good off the tarmac, we have to allow people to go off the tarmac.

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