Heather Roy's Diary
This week's guest columnist is Stephen Franks, Lawyer, Wellingtonian and former ACT MP.
Do you ever have to check the date of your paper, convinced that you must have read it before? Or read for pages before
realising you read it all a month ago? Too much same old same old.
Same old does save time - the great chunks you can skip because the heading shouts, "boring".
I also skip stuff that I know will spoil my day, like stories about OSH and carelessness prosecutions and employment law
cases. They're predictable (the boss is always wrong) they're infuriating (they treat adults as children) and often
they're nauseating (judge's sanctimony laid over stupidity).
The poor unfortunates have often paid a higher price for their accidental harm than our justice system would dare to
exact from the most deliberate evildoer. Then come the bands of lawyers crawling over the past, before another bloodless
lawyer on the bench tells them they should have known better.
Today's paper tells me of the skipper of a boat that foundered in heavy weather. To get a $1000 fine he lost his boat,
spent hours in the water, saw his mate drown, then endured a trial with a hung jury before pleading guilty.
The same paper reports the head of a "health and safety practice" at a major law firm who thought that a farming couple
got off lightly for $20,000 after not properly training an 18 year old who cut his face in a chainsaw accident.
The next page says a "support agency that did not prevent one of its clients from raping another client faces a $1
million demand for "redress" from the Health Ministry".
A few days earlier I read of the Employment Court giving Mr. Davis seven and a half years wages plus $45,000 for
"non-economic loss" plus past and future counseling expenses, because the bosses failed to do enough to prevent the
trauma from three armed robberies in two months. The bosses were liable because the robbery risk was foreseeable, and
they didn't take all practicable steps to prevent the trauma.
After the first robbery the employer wrote - "Prime Minister your credibility is on the line - already this year one of
our hotels has been broken into 46 times, the last occasion an armed group with shot guns bound and threatened 3 of our
staff escaping with over $46,000. The Police after 2 days no longer regard this incident as a priority. Does it mean
they have to get shot to get attention?
The employer installed extra lights, a security camera, temporarily got uniformed security to attend at lock-up time and
organised for Armourguard to clear cash in the evening, staff counseling, time lock and duress mechanisms on the safe,
and dummy cameras. Nevertheless the court held that the bosses should have extended a panic button alarm system, got
more cameras, signs about money not being on the premises (it was), and more staff training on robberies.
So why did I read enough to know the details of these cases? I guess I'm a bit sensitive at the moment. I've been
wondering how I'd excuse the law to Tai Hobson if he asked. Tai got the result of his appeal to the Court of Appeal last
week. It rated a few paragraphs in the paper too.
Tai sued the Department of Corrections as a matter of principle, to get someone to accept responsibility for not
enforcing parole conditions. Tai's wife Mary was bludgeoned to death in the Panmure RSA. Career criminal William Bell
had worked with her on parole. Corrections had not been checking where he lived and worked. They didn't warn anyone of
his terrible record or worry about the vulnerability of a liquor business to a robber.
Fresh victims to the William Bells of New Zealand are utterly foreseeable. Just under 80% of them are reconvicted within
two years of release on parole. A demoralised Probation Service often does not even prosecute for clear breaches of
parole. They can't stomach the waste of time. The last figures I saw for recall of prisoners who have breached parole
was 7%. That is not 7% of parolees. That is 7% of parole breachers.
So shouldn't Tai's claim have been a no brainer for the Court of Appeal? The court accepted that the RSA would be
unlikely to have hired Bell if it had been warned of his history.
Yet the claim was tossed out. So was the claim of Susan Couch, permanently injured by Bell. Why?
Because though Bell posed a risk, it was to everyone. There was not enough reason to foresee that Mary and Susan
specifically would be victims. Because "a more rigorous approach… to supervision… would not necessarily have prevented
Bell offending". And because "if the Department had given those warnings "he would presumably have remained unemployed.
If … (as seems likely) a parolee's prospects of re-offending are best reduced by encouraging him or her into employment,
it would seem contrary to the public interest to require the Department (on pain of being held liable for damages in
negligence) to act in a way which limits the prospects of a parolee obtaining employment"
"The imposition of a duty of care" would make probation officers over-cautious and lead to more re-offending "from the
parolees' prospects of successful rehabilitation being compromised".
So there you have it. Make sure the innocent can't know enough to protect themselves. They too must serve the disproven
theory that parole reduces re-offending.
This from the same Court that 5 months ago increased the compensation for the prison scum who complained that their
human rights were breached by a too tough regime.
As a lawyer I can follow the logic that lead the courts to these results. And as a lawyer I'm ashamed that they have not
apologised deeply for the resulting hypocrisy in the law, every time some morally innocent employer gets slammed because
he didn't cover off a risk. They are judged harshly.
Meanwhile the anointed in power go scot free for the absolutely predictable harm from releasing these human beasts.
We're told that all those preventable bashings, robberies rapes and murders are essential. They're innocent sacrifices
to the mad theory that if we are nice enough for long enough to criminals one day they might be nice back.
ENDS