For the Public Defender and the Prosecutor

This isn't quite as good as stealing a path, or painting a chicken, discussed over dinner on the summer terrace, but going off piste in your ute must surely be a personal choice?


It’s not often health and safety law is big news – but it has been in Australia this month, as a result of the judgment of the High Court of Australia in the Kirk case.
Graeme Kirk was director of a company that owned a farm in New South Wales, but left the management to an experienced farmer, Graham Palmer. One day Mr. Palmer was transporting some steel on a off-road vehicle, when for no reason anyone can explain he drove the vehicle off the gravel farm road, and down a steep hill. The vehicle turned over – and Mr. Palmer was killed. As a result, WorkCover (the Australian equivalent of our Health and Safety Executive) prosecuted Graeme Kirk, who ended up being convicted under New South Wales’s Occupational Health and Safety Act 1983. Section 15(1) of that Act states that

Every employer shall ensure the health, safety and welfare at work of all the employer’s employees

while section 53 provides defences:

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:
(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or
(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

Stopping at this point, it’s difficult to see what any employer can do to stop an experienced worker from literally going off-piste and, in a moment of uncharacteristic madness, taking an unacceptable risk at work. What was Mr. Kirk supposed to do? How could any training or workplace rules have prevented the accident? Surely, you’d think, one of the other of the section 53 defences would have helped Mr. Kirk – but no.
The Industrial Court saw the section 15(1) duty as absolute in nature. An offence under that section was charged without any real identification of anything Mr. Kirk or his company could or should have done to prevent the accident – the charges skirted that issue by referring vaguely to inadequate training and an unsafe system of work, without saying what a safe system might have consisted of, or what training could have prevented the accident. Even though it was subject to the section 53 defences, viewing section 15(1) as absolute distorted the Industrial Court’s approach, as the High Court of Australia explains (para. 38)

A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures the Kirk company should have taken, was that it was denied the opportunity to properly put a defence under s 53(a). Instead, the Kirk company was required to show why it was not reasonably practicable to eliminate possible risks associated with the use, or possible use, of the ATV. The guarantee against risk, seen as provided by s 15, was treated as continuing, despite a defence under s 53(a) being raised. The operation of that defence was treated as largely confined to an issue of reasonable foreseeability.

In practice, therefore, section 15(1) was applied as though it were absolute, so that an employer would be guilty of an offence almost automatically whenever an accident happened.
The High Court of Australia has now roundly criticised that approach, and has quashed Mr. Kirk’s conviction. Charges under section 15 must specify what risks the employer should have addressed and how he or she has failed to reduce or eliminate those risks. ABC Radio National interviewed Mr. Kirk earlier this month on its excellent show Counterpoint – you can read the transcript and may still be able to listen to the interview here.
The World Socialist Website sees this as a victory for capitalism at the expense of workers’ health and safety – but I disagree. I’m not the sort of person who shares the Fox view of law according to which employers should probably be released from all and any legal burdens. But I do think interpreting the legislation in such a way as to impose criminal liability on someone without any factual basis for holding them responsible for Mr. Palmer’s death was oppressive. Health and safety at work is a serious matter: it should not be brought into disrepute in this way, and laws aiming at securing it should not be used as as instruments of arbitrary oppression.
Nor do I think imposing absolute liability was good policy. If employers are faced with a reality in which no amount of sensibly-targeted expenditure on training and equipment can hold them safe from litigation, then it becomes economically irrational to invest in safety. Instead, you’d be better off buying insurance to enable you to meet legal bills and fines in case one of your workers is injured when something happens that you could never control. Absolute liability is the enemy of health and safety, in truth. Law and regulation ought to focus on practical precautions – on what employers can and should do now to reduce risk – not on the steamroller of perfect legalistic hindsight, a blunter and less effective way of trying to improve workplace standards.
Which is why I’m glad that a few years ago the UK fought and won in the European Court of Justice when the European Commission argued for an “absolute” interpretation of the equivalent EU health and safety legislation.

So anyone returning to the ecohouse, olive-picking assistant or no, had better watch out for the terracing.  Once past the bar, you have to get to dinner without mishap, or it's no dinner!

Bless

Adorned with a reproduction of the lovely fresco of the Annunciation taken from our house  in the  settecento  (grrrr, the ancestors handed over a large part of the garden too, on which the 'new' church now stands;  before that the village church was further down the hill and the room from which the fresco was moved was a dear little chapel, part of this building) the parish priest has sent out his leaflet on the dates and times when we should be at home to be blessed.  The parish priest barely clears the bar for blessing, in my book.

Where I grew up, Hatfield, our parish priest had a DD from Rome plus various other minor Oxford-conferred degrees, and movable teeth.  These last were watched by an enthralled congregation as, the tenor of his sermons being well above our heads, their positioning indicated how close we were to the resumption of Mass and,  mutatis mutandis, Sunday dinner.  We would reel home, our senses blurred by clouds of incense both intellectual and from the vigorously wielded thurible, eyes with dancing patterns of lace feet-deep on cottas and altar, and candles ranked like angels in burning rows.

Here they play guitars and have ragged singing in local dialect.  Confession here would be an act of desecration to all the subtleties of sin learned (though not necessarily practised - a considerable lack of opportunity reigned in Hatfield to sin in the ways our parish priest was able to envisage) as an interested frequenter of Sunday School. Nope, this parish priest opens the Easter blessing batting with this:

"Every year, in preparation for Easter, we undertake Lent and think of the poverty of the human spirit, not always adequate to the demands of our life's journey [il cammino della vita is an obligatory hat tip to 'our cultural heritage, we all know our Dante', which we don't but who's checking?  ed.]
We feel reassured, thinking our times of poverty long gone, never to return [this village has one of the highest per capita incomes in the country, ed.] as we enjoy our place among the world's richest countries (at least from  published classifications) [a point must be given for suspicion of statistical data presentation there, ed.] and view from our plenty the miseries of the so-called Third World.

BUT THERE WILL BE NO BUTTER IN HELL!  [all right, he didn't write exactly that, but he would have done if his literary excursions had extended beyond Dante to Joyce, ed.  What he actually wrote was]:
"But we have woken up one of these mornings and found ourselves impoverished and alone!
Today being alone is a great burden for many; and when it is taken with economic uncertainty, which only yesterday was so reassuringly absent, it makes us feel really poor, as human beings. [mmmm, that's not quite the Christian message from the Hatfield perspective; being alone but compensated by being rich was not an objective as I recall. After all do we admire Cardinal Siri of Bologna with his ringing endorsement of the local view:

Homo sine pecunia, imago mortis. ed. ?]

"So, this time of the year  is particularly suitable for rediscovering the measure of our real wealth, which no-one can take from us. Our dignity as children of God who partake in the resurrection of Christ. [now what kind of rallying cry is that to the multiculti hordes? And he presses on! ed.]

"We cannot walk alone and, though nothing can stop us illuminated by the light of  God's word, the  difficulties could provide paths other than those  paths designed by human kind  [does he mean the paths of Angels? ed.] to return to  vigour, strength and hope for tireder and weaker members [or a hint at viagra? ed.]

With God's help we shall rise again!"

Gosh.  Should we be at home on 12 March?

Diversity

Would you be able to pop out into the village (or your local Waitrose) and buy a stick of sealing wax?  The joys of shop diversity where brought home today along with half a dozen drinking eggs,  a new salami, the dry kind not the wetter sort from the North, teeny-weeny lamb cutlets for deep frying like Mars Bars (the result of the slaughter of teeny-weeny male lambs, baaah), and 20 litres of white@a euro a litre with a convenient little tap on the front.

No kings but cabbages are piling up downstairs from up the hill.

(Disappointingly it's not that the entire population is flinging back  the velvet sleeves of its doublets and mantles and stamping rolled parchments with rings and seals, they use it to double-secure the corks of wine bottles.)

Lunch in One Gulp

'Lovely fire, Why are you adding more wood?"

"....few people... on way to conference in Siena.... passing by from Rome.....might call in."

"What time?"

"One-ish."

I set off to put clean towels in the bathrooms, and dust the more obviously undusted - Philip Pullman should have set the novels here, we have dust for universes unknown to man, which is where it all must be coming from.

"What should I get from the butcher?"

"Meat."  This is the tight-lipped, growly bit of discovering that a salad with a prosciutto pannino isn't the menu for lunch, you understand.

Enthralled I unpack half a cow and most of a pig's insides variously stuffed into skins and casings.

"Did you tell him how many?"

"Oh yes.  He said he'd be able to send over more if that seemed insufficient."

So I put a bowl of fresh pasta with  Australian-bottled tomatoes and parmesan on the front end;  laid out the fire in a bed of coals and the meat (plus my hands and face) on grids and griddles over it; boiled the latest greenery from up the hill (that, at least, was an uplift to the heart), and stood in front of the shelves where the tablecloths are contemplating the likely damage.  People get carried away eating barbecued meat, even when it's indoors -  no, particularly when it's indoors in the middle of winter.  So it was a deep red, robustly woven linen, and large paper napkins.  Well you try getting tomato sauce followed by barbie off cloth ones.

Noticing a touch of fluster, Mr HG picked up a stray umbrella queueing to go downstairs with one pair of pruning shears, and some bright green plant ties that had settled in on the fireplace,  began refurling it correctly, and asked what else he could do to help.  I eyed him as he neatly pleated the edges of the refurled umbrella:

"You go into your study and earn lots of money after you've popped that umbrella downstairs."

"Right - they've just rung to say they've left the motorway, but everything looks under control now."