Throw Out This Speculative Suit And Award Costs To The Defendant

If our legal system does not place a strong emphasis on common sense and personal responsibility for basic safety, expect to start paying $5 for a lukewarm cup of coffee.

Because that’s an example of what will happen if the stupid bitch who is suing McDonalds because she spilt a hot cup of coffee in her lap actually wins her case.

Suppose Jessica Wishart is successful in her claim, not against McDonalds by the way, but against the franchisees, Robert and Sonya Vigors who run the Renmark, SA restaurant. How will public liability insurers react?

By massive increases to premiums and stricter terms and conditions. That will flow through to consumers, not just in terms of increased prices, but restrictions on the nature of goods and services provided.

It won’t be confined to servers of hot beverages either. This case will set a precedent, where on a flimsy pretext of insecure packaging or lack of warning labels, a supplier of goods will be held responsible for any mishandling after purchase, regardless of common sense. Insurers will use the case as an excuse to raise public liability premiums across the board and seek to limit their liability by forcing adherence to stricter conditions. It’s us consumers who will suffer. Only the lawyers will benefit.

Morry Bailes, managing partner of Adelaide law firm Tindall Gask Bentley said:

"The mere fact that an injury was occasioned by a hot cup of coffee should not lead to a view that a claim is unjustified."

Maybe not if someone threw it on you. But definitely if you spilt it on yourself.

Would Tindall Gask Bentley perhaps be the law firm representing Jessica Wishart?

Jessica Wishart’s statement of claim says:

"While sitting in the front passenger seat (of a car) she experienced a burning sensation to the fingers of her right hand, which was holding the cup"

What could that possibly be?

"Due to the intense heat emanating from the cup and the failure of (McDonald's) to properly secure the plastic lid, hot coffee spilled on to her thighs."

No, due to her own stupidity in not putting the cup down somewhere it wouldn’t spill.

Her argument is probably along the lines of: McDonalds failed to put the lid on adequately, so when she involuntarily squeezed, shook or rotated the cup, the coffee spilled. But why would you believe this? If a takeaway cup is squeezed or has sufficient percussive force applied, its lid will come off. Isn't the most likely explanation that Jessica Wishart caused the lid to lift from part of the cup rim and the coffee to spill through her own, negligent action?

Additionally, the claim that McDonalds did not put the lid on correctly can only be speculation, since had Jessica Wishart noticed this was the case, why didn't she correct the problem herself, or at least put the cup down? 

Coffee is served hot, you dumb bitch. That was the “burning sensation to your fingers”. It’s hot because it’s made with boiling water. Sometimes it’s hotter than we’d like. Thus, care is required when handling a paper cup full of it.

We should not allow this American style bullshit to take root in Australia.

The courts can stop it right now: find for the defendants (who are not a large corporation, but small business owners) and award costs against the plaintiff. Then how many speculative lawsuits of a similar nature will subsequently be brought?

Gay Marriage And The Role Of The State

Liberalism necessarily implies secularism. In a secular polity, the state, consisting of parliament, the judiciary and the executive, does not concern itself with questions of purely social philosophy¹. These are for citizens to decide, through reasoned, public debate and if necessary, the ballot box.

One such issue is the nature and meaning of marriage. There have been calls for MPs to be “allowed” a conscience vote on whether the right to legally marry should be extended to same sex couples, effectively allowing a set of politicians to impose their personal views on the community. The logic of this is wrong.

In an open, liberal society, it is not the role of MPs to decide issues such as same sex marriage on behalf of the populace. Their role is to gauge the opinion of their constituency and to vote accordingly.

The role of a liberal state in social matters is threefold:

1.      To formalise, if necessary, the wishes of its citizens.

2.      To help decide on issues of logic, in cases where the wishes of its citizens are contradictory.

3.      To interpret and enforce contracts.

Which citizens are able to enter into which contracts is derivable from a society’s core principles, which are established by a process of debate and agreement between its citizens.

Firstly, citizens agree on who can decide on their society’s core principles and how that is to be done. For example, children may not be deemed capable of understanding the issues. Mentally incompetent adults may also be excluded. Next, the core principles are decided. These, together with the decision making process itself, will form one of the society’s fundamental documents: its constitution.

It is possible that an important question such as the nature and meaning of marriage would be seen as sufficiently fundamental to be included in a society’s constitution. If this were so, the role of the state would depend on the nature and drafting of the relevant section of the constitution.

If the constitution formally laid out the meaning of marriage, who could and couldn’t marry and in what circumstances, the judiciary would decide that a referendum is required to change the marriage law and parliament would facilitate this referendum if evidence of sufficient support for a change to the law was apparent.

However, if the constitution simply allowed parliament the right to make laws in respect of marriage, the role of the state is only to draft and enact the laws agreed upon by its citizens.

In Australia, the latter is the case. Section 51 (xxi) & (xxii) of our constitution allow federal parliament to make laws in respect of marriage and divorce. There is such a law: the federal Marriage Act (1961). Section 5 states that

"marriage" means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

It’s pretty clear. The paragraph was actually introduced as an amendment by the Howard government in 2004, with support from the ALP.

However, the situation is a little more complicated than it looks, because the states can also make marriage laws. So the states could just pass their own same sex marriage laws, right?

No. Not so simple. Section 109 of the Australian Constitution says that where federal and state laws are inconsistent, the federal law overrides the state law. BUT, as UNSW constitutional law professor, George Williams points out, the Howard government’s 2004 amendment possibly has an unintended consequence: the federal law limits the definition of marriage to a union of a man and a woman.

Perhaps then this federal law can only override state laws in respect of formal marriages between a man and a woman. The states could be free to make and recognise same sex unions by calling them something slightly different, but giving same sex couples equal rights and obligations as opposite sex couples.

Is this the path we really want to go down? An important social issue descending into a lawyers’ picnic, with “rights” obtained by casuistry and legal legerdemain, with the possibility they may be overturned by future parliaments?

What is needed is a clear, public debate as to whether same sex or even plural marriage follows as a corollary of two of a liberal society’s most fundamental principles: liberty and freedom of association. Or do a significant majority of us believe that allowing homosexuals (or transsexuals) to marry is so detrimental to other aspects of society that banning it must override liberty?

Some people do believe this.

There are stupid assertions, such as South Australian Senator Cory Bernardi saying that the devaluation of the institution by same sex marriage could eventually lead to people marrying animals.

The reason why it couldn’t is obvious: animals cannot give informed consent and therefore cannot enter into contracts. It is disappointing that no-one in government or the media picked this point straight away. Cory Bernardi is a moron. How hard could it possibly be to shoot down a moron’s argument? Apparently not that easy for our genius MPs.

Any RTBB readers will know that it is not homosexuality which leads to marrying animals, but the regrowing of teeth.

A common, though false counter argument is that allowing same sex marriage would give gay couples equal rights to adopt children or obtain custody in divorces, presumably endangering them in some way. But gay couples already have children. This has more or less openly been the case in Western society for at least two generations. Thus, there has been sufficient time for longitudinal studies. I am aware of no evidence suggesting children raised by gay parents have statistically worse outcomes on any measure of achievement or social function. Children of gay parents do not appear to have lower outcomes in educational attainment, earnings as adults, criminal behaviour, drug addiction, depression or suicide. Wikipedia has a good summary of meta-analyses of research in this area, with numerous citations.

There are meta-analyses which purport to contradict the assertions above, generally funded by right wing, Christian groups in the USA. It’s the American Academy of Pediatrics and the American Psychological Association who are probably biased though, being full of left wing doctors.

Additionally, suppose that same sex marriage continued to be banned. This would not prevent homosexuals from having children: it would only ensure a bias against them in custody battles and adoption applications. What of the children of gay men born to surrogates? Or the children of lesbians conceived via sperm donors?

Should a state which bans gay marriage force abortions? Removal of these children from their parents? Prosecution of the parents for surrogacy? Not a liberal one.

If not, then has the state abrogated its duty to a cohort of “at risk” children?

Apparently, the citizens of liberal democracies do not believe so, since no such laws exist. What then, is the problem with legally recognising two people’s assertion that their relationship has progressed beyond simple cohabitation, regardless of their gender?

Some opponents of same sex marriage proffer that gays marrying will devalue the institution of marriage. The opposite is true.

Marriage is a great deal more than simply living together and seeing how things go, or even living together for a long period of time (without producing children). It is a ceremony which represents more than an extra commitment: it is a public statement of a transition within one’s own life and within society.

What many homosexuals want is what marriage represents for heterosexual couples in a modern, liberal society: the power to say for yourselves when your relationship has progressed to a level of mutual commitment beyond that of sharing a dwelling and a bed. They don’t want that distinction made by a politician, judge or public servant.

Disallowing gay marriage will cause more young people to treat the institution as anachronistic and irrelevant. I suggest this will lead to lower rates of marriage in general, as younger generations view it as an artefact of their parents’ reactionary generation.

In the break-up of a relationship (hetero or homosexual), conflict often ensues as to the entitlements and duties of each partner. How then, will the seriousness of the relationship be determined if there are no children involved? By a judge? A committee of progressives? Who will set the criteria?

Better, I suggest, to allow those involved a say in the matter, through a formal statement as to the nature of their commitment.

There have been suggestions that by not recognising same sex marriage, Australia may run into some problems when gay couples married in foreign jurisdictions emigrate. New Zealand ratifying same sex marriage was posited as an example.  

That’s not the case. Part of the Marriage Amendment Act 2004 is the addition of S88EA to the federal Marriage Act, explicitly stating that foreign same sex unions are not recognised in Australia. It would require a highly activist High Court ruling to overturn Australia’s sovereignty (which doesn’t mean this could not occur).

I’ve provided a lot of argument here in favour of allowing same sex marriage. In fact, I believe plural marriage should also be legal.

It is fundamentally a question of liberty and the role of the state in an open, liberal society. Behaviour should be proscribed, not prescribed. If there is no conclusive evidence that certain actions are harmful to other members of society and that the harm could not be avoided by prudent action, those actions should not be proscribed. Any actions not proscribed are legal.

If the majority, or even a significant minority of citizens believe that same sex marriage is not harmful and there is no scientific evidence contradicting this belief, then it is the duty of elected politicians to formalise the views of their constituency through legislation in its favour.

I said even a significant minority because if there is no evidence of harm, the principles of liberty and equality should take precedence. The role of the state should then be simply to act as an interpreter and enforcer of contracts between those deemed capable of informed consent. In the case of marriage, that is adults who are not mentally impaired. It is not the role of a liberal state to make judgements on the morality or appropriateness of competent adults entering into a contract, regardless of their gender.

If certain, elected political groups represent a constituency which opposes same sex marriage, then their parliamentary representatives should vote against it. One can criticise the political position, but not the vote.

If a majority of citizens support the political principles underlying same sex marriage, the minority political groups can have their vote and lose.

What is important is that politicians ensure that the wishes of their constituencies are enacted. Their personal conscience is not relevant; they were not elected to serve it.

¹ By purely social philosophy, I mean principally non-economic matters, such as freedom of speech, enfranchisement, homosexuality, drug use, euthanasia and the nature of marriage. All of these issues can have economic effects, however their principal nature is clearly social.

A liberal state should concern itself with philosophical questions of a socioeconomic nature, such as the distribution of wealth, because the scientific method can produce evidence to guide policy. For example, it may be the case that some wealth distributions or taxation systems are demonstrably likely to decrease overall wealth. In this event, they should be rejected as policy and the public educated as to why.

Let's Not Follow The UK And Class Bigotry As An Aggravating Factor

Someone from deep in the lower tail of the privileged ie. white socioeconomic group goes off on a racist rant on public transport. How should an open society deal with such behaviour?

I’m using the term “privileged” ironically here. Being white confers a range of privileges in Western society, but the advantage of skin colour is significantly outweighed by parental education and financial resources. Does the white son of unemployed, housing commission tenants at Macquarie Fields or Broadmeadows have a better chance of success in life than the daughter of tertiary educated, Asian, Arab or black parents living in Killara or Camberwell?

In Australia, we’ve had a few recent headlines about bogans going off on racist tirades on public transport. Now there has been another incident, this time on a Melbourne train. You may also recall the Emma West incident in London in late 2011.

They have all been by people toward the bottom of the pile in their perceived, large scale social group, who are clearly threatened by immigrants’ success and angry they have not received their “entitlements”. While they may feel justified in their assertion that citizens of British ancestry should have more of a say than other immigrants in how England or Australia is run, they are incapable of articulating anything other than the visceral rage their feelings generate.

Is it necessary or constructive to lay anything beyond offensive behaviour charges against people who yell “This is my fucking country”, “Do you fucking speak English?’ or “None of you are fucking English. Get back to your own country. Sort your own countries, don't come and do mine.”?

The opinions of poorly educated people with impotent social connections and little access to economic resources matter little until they decide to let off a (usually intoxicated) racist tirade in public. Suddenly, their actions are treated as if they have the potential to cause civil war, or at least a “grave threat to public order”.

The media rush to the thesaurus and fall over themselves to exhibit their PC credentials, describing the rant as “vile” and “disturbing”.

No it’s not: it’s just one of society’s dregs going off at some people who aren’t white. ‘Vile’ is a man raping a six year old. ‘Disturbing’ would be a party calling for the deportation of all foreigners getting 10% of the vote.

The Victorian woman was arrested and charged with using obscene language and riotous behaviour in a public place, under S17.1(c) and (d) of the Victorian Summary Offences Act. Usually, Section 17.1(c) (offensive behaviour) suffices. 17.1(d) (riotous behaviour) tends to be added when there is conduct which, as Victorian Legal Aid puts it, “frightens a member of the public and makes them fear that some breach of the peace is likely to occur”.

Was a 37 year old woman racially abusing two fit, young men likely to frighten them, or just anger them? If the vast majority of their fellow commuters were supportive, why would they have been frightened?

Despite a prevalent internal culture of racist views, the police were quite comfortable laying multiple charges. That’s because the police are almost cynically bureaucratic and driven by arse covering. Given the current political winds, they would happily lay every charge on the statute if they believed that would protect them from complaints of bias by various “community” groups or the Human Rights and Equal Opportunity Commission.

I’m not saying no charges should have been laid; just that 17.1(c) and a fine or better, a fine and community service should suffice.

In last year's Melbourne bus incident, there is clearly a case for an extra 17.1(d) charge against the man who smashed the bus window, because members of the public certainly had good reason to fear for their safety. The police could add a S9.1(c) charge for damaging public property. The three charges together should lead to a hefty fine and many hours of community service.

What we should not do is follow the UK path of declaring significant circumstances of aggravation in any harassment or insulting behaviour with racist overtones. The difference between telling someone “fuck off, you cunt” and “fuck off back to your own country, you don’t belong here, you black cunt” should not be a fine (or not even that) versus a jail term, such as what has befallen Emma West in Britain.

Does anyone believe such a distinction will be made in the laying of charges against black, Asian or Arab people? There is evidence the contrary is occurring in Britain.

All summary offences acts have some section which deals with offensive, indecent or threatening behaviour. In a liberal society, it is reasonable the law should contain such proscriptions, since it is citizens themselves who by consensus decide what constitutes “offensive, indecent or threatening behaviour”.

In a liberal society, people are also entitled to hold and express opinions which are racist, sexist, homophobic, or any other flavour of bigotry. If they express such opinions in a threatening manner, laced with abuse and other offensive language, then they should be charged under S17.1(c) or its equivalent, for the offensive and threatening behaviour, not for expressing their opinions, nor for the particular opinions expressed.

If someone says ”you’re not British if you’re black” or “Asians can never be Australian”, I don’t agree with them, however they should have the right to open the subject up for debate, even if heavily outnumbered. If we can’t police thought, why should we police voicing it?

The problem with adding circumstances of aggravation to summary offences, which usually involve intemperate speech or low level aggressive behaviour, is that it tends to be done by statute, but exercised selectively. The statute ends up looking like a quilt, with a patch for every minority or “oppressed” group and its grievance: cultural minorities, women, homosexuals, the disabled, adherents of foreign religions, anyone who isn’t white. The application of circumstances of aggravation is then selective and hypocritical: Muslims are rarely charged with making inflammatory statements against Jews or women, black people and Arabs never face additional charges for attacking white people.

That’s because these laws are a creation of the academic left, many of whom are ashamed of their culture’s success and power, despite being quite happy to reap its benefits via their university educations, public service salaries and middle class lifestyles. They are more concerned with attacking opponents within their ethnic group than defending against the enemy without.

If we allow these types of aggravating circumstances for “public order offences” in Australia, the left and its “oppressed” allies will hijack the law, as they have in Europe. Immigrants who are quite reasonably criticised for religious and other culturally derived practices and views will claim “hate speech” to stifle reasonable debate on assimilation. Lefties will do more than roll over and give in to them: they will join them in their fight to undermine our liberal social structures.

The quid pro quo for freedom of expression, including bigoted views is twofold. Firstly, there should be some form of offensive or threatening behaviour summary offence. Secondly, the right to self defence should extend to using reasonable force to defend oneself and others against ANY crime, including summary offences such as offensive or threatening behaviour. That includes the right to force a nuisance off a bus or train or out of a premises, physically if necessary.

Nice Punch, Cowboy! Don't Apologise For It

Men need to stop cringing and stop apologizing for proportionate acts of violence done in defence of themselves or others, or to remove a nuisance or troublemaker.

I’m not talking about flattening or beating the shit out of somebody manifestly less physically capable, or putting the boot in when someone is on the ground. I mean doing just enough to take control of a situation and your personal space and further, doing so with minimal disruption to your planned activities.

What prompted this post is Gold Coast busker David Mulder, the Silver Cowboy delivering a single punch to the jaw of a drunken twit who was sticking a wet finger in his ear and rubbing his face. Nice punch, too.

The guy was being a complete dickhead and even admitted later that he regretted heckling Mulder and probably asked for it. The amount of support for David Mulder shows a large percentage of the general public believe there are circumstances in which people deserve to get hit.

Of course, elements of our nanny state bureaucracy and other assorted oxygen thieves made it their business to condemn the violence and an “official investigation” was launched.

Probably in order to keep his job, David Mulder had to issue the standard mea culpa from the nanny state’s liturgy: “Not proud of myself … don’t condone my actions … we were both in the wrong … violence is never vindicated.”

Yes, sometimes it is. If not, why are the police and most security guards armed? And no, we shouldn’t have to have our day / evening ruined by waiting for the police to arrive and deal with the situation.

Thankfully, common sense prevailed in this case and the matter went no further. It could easily have done so, had the heckler wanted to pursue an assault charge. At least he was man enough to admit he deserved to get hit.

The police handled the matter sensibly as well. Good to see they had more important things to do, like catch burglars.

Maybe someone had a word with the heckler and pointed out that licking your finger and sticking it in someone’s ear, then rubbing their face is also an assault. Notice that his name hasn’t been widely published. It would have had he pressed charges.

Most of us on occasion are faced with situations when an idiot is being aggressive or just a nuisance. Some, mostly men, are capable of dealing with the problem physically: one or two punches in the stomach or on the chin, or twisting the fool’s arm up behind their back and shoving them out a door. In a liberal society, there is nothing wrong with taking this approach.

It’s only a social compact that men (and sometimes women) don’t routinely become aggressive as a means of solving problems. But sometimes that compact is broken. Being able to deal with physical confrontation, being able to defend yourself and others is part of being a man. By that, I mean two things: firstly, to be capable of prevailing in a physical confrontation, or at least seeing off your attacker and secondly, to have the self control to act proportionately.

To do what David Mulder did should be legal. The only tests should be sufficient provocation and proportionality of action.

The One Punch Can Kill campaign is nanny state bullshit. Sure, if it’s a king hit to the temple or you punch an old man. But no decent man would do that.

However, if one punch knocks a man of comparable age and size down and they hit their head and die, there were a multitude of factors contributing to their death, including an inability to adequately defend themselves, despite provoking others, not to mention an inability to not provoke others in the first place.

It does not matter that women are in general less physically capable and don’t have violence as an option. Men shouldn’t have to resile from using their abilities as discussed above just because others can’t. The law should not reduce all to the lowest level of competence.

Men need to become more vocal on this issue. Say what most of us think: that sometimes a modicum of violence is an effective and even necessary solution to a problem. Those who think otherwise are welcome to their opinion, as long as they know to fuck off when told.

Fingo On Twitter

It only took two years, but Brian Fingerton has gotten himself a Twitter account, with the handle @brianfingerton.

When Twitter started, I thought it was largely stupid, but would be successful. I still do.

What can 140 characters usefully do but advertise articles, events or goods for sale? But of course, millions of stupid people use it to spout billions of vacuous and often erroneous assertions, or to flame each other. That is why Twitter has been and will continue to be successful. This was obvious from day one, because that’s what most people are like: too lazy and ignorant to construct thoughts which require more than 140 characters to communicate.

I’m not planning to say anything that doesn’t appear on RTBB; just advertise posts.

So, loyal RTBB readers, please follow that tweetin’ Fingo bird for RTBB updates.

I Thought The Greens Were A Secular Party

For a nominally secular party, the Greens are certainly talking up the fact they have just installed “the first Muslim woman appointed to any parliament in Australia”, into Cate Faehrmann’s soon to be vacant NSW Legislative Council seat.

New MP, Mehreen Faruqi even claims to be the “first Greens MP in NSW from a migrant background”. Her predecessor is of course not from a migrant background, because she is white, despite Faehrmann / Fährmann clearly being at least partly of German extraction.

What she really means in that she’s the first choccy frog the Greens have seen fit to place sufficiently high on their Senate ticket to actually get elected. That the NSW Greens are trumpeting this is telling. A look at their MPs reveals what a bunch of white, university educated, middle class lefties they really are.

Why make an issue of Mehreen Faruqi’s Islamic background / faith at all? Is she going to be pushing Islamic issues from within a putatively strongly secular party?

Oh, but it’s about promoting diversity. Promoting the identity politics and associated tokenism which are core to this preachy, politically pious lot’s ideology, more like it.

People are categorized according to the source of their oppression: race, gender, cultural background, economic resources, sexuality, disability. Then the predominantly white, university educated, middle class lefties set about fervently fighting for social justice and railing against the exclusion of anyone who ticks at least one (and preferably more) of their boxes. Of course, if you’re fighting for the right causes, it’s OK to maintain a privileged position, like David Shoebitch’s home in Woollahra, perfectly legally in his wife's name and his money presumably safely in a trust. Were we all so privileged with the legal education and means to secure our assets from confiscation, David!

How progressive of these enlightened white people to have welcomed a brown person into their club … and a Muslim too. But Muslims being in general more antagonistic toward women and homosexuals than all but the most fundamentalist Christians is something they’ll conveniently overlook, because Muslims tend to be brown people and therefore by definition oppressed … and Christians tend to make softer targets.

If the Greens honestly pursued the secularism and egalitarianism they pretend are part of their “core values”, their press release would not have even mentioned Mehreen Faruqi’s religion, because in a secular polity, that is a private matter and should have no bearing on the policies she will promote when she enters parliament.

Judging by Mehreen Faruqi’s stated aims of supporting feminism and same sex marriage, if she still adheres to the faith in which she was raised, she must be one of the minority striving to drag it out of the mediaeval era. It will be interesting to see how she reacts to statements by more conservative Islamic “leaders” when they can’t help themselves and open their mouths again.