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Foot in Mouth

Much of everyday speech is inaccurate, so inaccuracy is not a big deal in everyday life. However, Government ministers do not inhabit our banal everyday world. In the case of the Minister for Agriculture and Food this means at least two things; he should not say “appraise” when he means “apprise,”  and he should not undermine criminal investigations by diminishing the facts being investigated which he does when he says he is investigating “mislabeling”. To say that selling horsemeat as beef is mislabeling is to imply inaccuracy, merely, by the seller.

Sometimes even inaccuracy is very serious. When an auditor finds a discrepancy of €1.5 euros in the accounts he/she keeps looking for the cause of that discrepancy. If they do not, they may find they are answerable for a very large fraud.

The Minister for Agriculture and Food is running that risk.

He should read Section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001. It reads:

“6.—(1) A person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception induces another to do or refrain from doing an act is guilty of an offence.”

The definitions section of the act says this:

““dishonestly” means without a claim of right made in good faith;”

A Death in Hospital

The Vatican is an uncivilised place. A place is uncivilised if a person may die and the cause of death remains unexplained. This happened on the death, in the Vatican, of Albino Luciani, Pope John Paul I, in 1978.

He was Pope for one month.

What if he had died in Ireland?

Depending on the circumstances there would be an inquest. An inquest is an inquiry by a coroner into the causes and circumstances of certain deaths. A death such as that of the Pope in 1978 would certainly, in Ireland, require an inquest and a post mortem medical examination.

The procuring of a coroner’s inquiry is two-fold. There is an obligation on certain people to report the death to the coroner. Then there is the obligation on the coroner to have an inquest. Even where there may not be an obligation on the coroner he frequently has an option to have one.

The general thrust of the law is to relieve the coroner of the obligation, if a person dies of an illness following treatment, by a medical practitioner, for not less than one month prior to death from that illness.

Section 17 of the Coroner’s Act 1962 states as follows:

“17.—Subject to the provisions of this Act, where a coroner is informed that the body of a deceased person is lying within his district, it shall be the duty of the coroner to hold an inquest in relation to the death of that person if he is of opinion that the death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes or in a place or in circumstances which, under provisions in that behalf contained in any other enactment, require that an inquest should be held.”

This is a bit vague and woolly. Things get a bit more interesting with the next Section, Section 18.

It states:

“(4) Every medical practitioner, registrar of deaths or funeral undertaker and every occupier of a house or mobile dwelling, and every person in charge of any institution or premises, in which a deceased person was residing at the time of his death, who has reason to believe that the deceased person died, either directly or indirectly, as a result of violence or misadventure or by unfair means, or as a result of negligence or misconduct or malpractice on the part of others, or from any cause other than natural illness or disease for which lie [sic] had been seen and treated by a registered medical practitioner within one month before his death, or in such circumstances as may require investigation (including death as the result of the administration of an anaesthetic), shall immediately notify the coroner within whose district the body of the deceased person is lying of the facts and circumstances relating to the death.”

Anaesthetic? What’s that about?

Well, it would also be uncivilised if the members of the medical profession were to be able to cover up their negligence, or worse. So, oddly enough, a death in a hospital is more likely to occur in circumstances requiring notification to the coroner than if the death occurred in the home of the deceased person.

The notification obligation is quite extensive. There is an obligation under the Civil Registration Act 2004 to notify the Registrar (“an tArd-Chláraitheoir.”) (who is not the coroner) of the death. If you discover a dead body you are legally obliged to report finding it. The fact that the enforcement of this obligation is weak is unlikely to cause practical problems. Few people would fail to report such a thing; if they admit such a failure the investigation is more likely to focus on their role in the death than in the failure to report it.

A Hundred Thousand Welcomes!

Section 3 of the Hotel Proprietors Act 1963  stipulates:

“The proprietor of a hotel is under a duty to receive at the hotel as guests all persons who, whether or not under special contract, present themselves and require sleeping accommodation, food or drink and to provide them therewith, unless he has reasonable grounds of refusal.”

Section 4 goes on to provide:

“Where a person is received as a guest at a hotel, whether or not under special contract, the proprietor of the hotel is under a duty to take reasonable care of the person of the guest and to ensure that, for the purpose of personal use by the guest, the premises are as safe as reasonable care and skill can make them.“

This probably imposes a higher standard of care than the Occupiers Liability Act 1995.

Section 5 provides:

“Where sleeping accommodation is engaged for a person as a guest at a hotel, whether or not under special contract, the proprietor is under a duty to receive any property brought to the hotel by or on behalf of that person for which the proprietor has suitable accommodation”

Section 6 provides:

 “Where sleeping accommodation is engaged for a person as a guest at a hotel, whether or not under special contract, the proprietor is liable for any damage to, or loss or destruction of, property received by him from that person or from some other person on his behalf.”

The Act provides that a motor vehicle is received when parked in accommodation provided for that purpose by the proprietor and the hotel staff is notified of that fact.

By implication other property is received without notice to the staff. (There are special rules for goods deposited with the hotel itself).

The Act limits liability for loss of property (except motor vehicles) to £100 but only if a notice pursuant to the First Schedule is prominently displayed at reception. The notice is in Irish and English and reads:

“NOTICE

Damage to, or Loss or Destruction of, Guests’ Property
Under the Hotel Proprietors Act 1963 the proprietor of a hotel, as defined by that Act, may in certain circumstances be liable to make good damage to, or loss or destruction of, a guest’s property even though it was not due to any fault of the proprietor or staff of the hotel.
This liability, however—
( a ) extends only to the property of persons who have engaged sleeping accommodation at the hotel;
( b ) is limited to £100 in the case of any one person, except in the case of motor vehicles and of property which has been deposited, or offered for deposit, for safe custody.
A hotel, as defined by the Hotel Proprietors Act 1963, is an establishment which provides or holds itself out as providing sleeping accommodation, food and drink for reward for all comers without special contract and includes every establishment registered as a hotel with Bord Fáilte Éireann.”

 

Sticking in your craw?

Recent posts have been food oriented. If the posts or your food are, reportedly, sticking in your craw, you are using a figure of speech.

Humans do not have a craw, birds do. It is also known as the crop.

Just down the bird’s alimentary system is the gizzard. Food does not stick there. Chickens, for instance, store small pebbles in the gizzard to grind food, they not having teeth. It’s suggestive of their ancestry in the dinosaurs, some of whom swallowed rocks for the same purpose.

As a figure of speech to say something sticks in your craw is an old saying.

There was a time, recent in Ireland, where everybody had an intimate knowledge of the farmyard and they were familiar with the constitutions of chickens and their ways.

Now, entire industries can figuratively stick in our craw.

Our Risky Environment

We are rightly worried about our beef burgers. The supposed international criminal conspiracy undermining the meat industry is easily located; it is the meat industry. But the meat industry is not unique.

Consider our bread. We have been suspicious about it for a long time. When white bread was invented or introduced it was popular with the rich; they felt more confident that they were not eating bread contaminated with mouse droppings or insects or their body parts. (Bleached excrement and beetle parts are OK?)

Then the rich became suspicious about white bread. It was of lower nutritional value. Indeed, all mass produced bread is of lesser value than homemade or artisan made bread.

These issues are sub-sets of a larger issue: we inhabit one environment, much of it engineered. Lots of things can go wrong and if one does many people will be affected.

The general legal principle (the law of negligence) means that the person or persons who engineer the environment will be answerable for the consequences when things go wrong (central bankers and politicians, generally, excepted).

We have tried to make some of those “engineers” more readily answerable for the hazards of parts of that environment.

Employers come to mind.

See HERE  for the advice from the UK Health and Safety Executive to employers about safeguarding employees (and others, partially) from infectious agents.

Some of the “engineers” are builders and we have recent reason to think about walls and the building of them. In Cowan v GAA and McInerney & Son Ltd. [1991] 1 IR 389 the court heard that the plaintiff, a spectator, was injured when part of a wall collapsed on him at Croke Park in 1985. The part of the wall not collapsed had dowels or rods in it; the collapsed part did not. The court inferred that the specification for the wall required rods in every part and therefore the second defendant was liable. The first defendant was also liable because it should have reviewed the safety of its premises with a general structural examination following two notable disasters in foreign public stadia in 1985

Moods

We are a firm of lawyers. Our website should deal with legal subjects. Hopefully, we do not lapse from that rule and, without going to the trouble of conducting an audit, we think we do not.

It’s a broad rule and allows us to write (polemically if necessary) about such diverse topics as road accidents,  accidents at work,  medical negligence,  planning act infringements and fingerprints.

We could, if necessary, even comment on Bilbo Baggins’ contract with the dwarves at the beginning of The Hobbit. (1)

Now this, we think, gives us a practical turn of mind. Admittedly, it is difficult to know what that means and I think its meaning varies from situation to situation, but it probably means that we expect to reach for and grasp finality, or, as they say in the USA, we expect to reach closure (for our client).

That militates against interest in reviews of the current state of the law but certainly does not exclude it; we read or write them if we need to do so, but they are not our reading of choice. (2)

It is possible that a certain interest we express, in probabilities, springs from this utilitarian approach. Sometimes this appears so clearly our client notices it; one such litigious client bought us a crystal ball because we had lamented (too often) we lacked one. (3)

Being practical also means being discreet. At the beginning of the US civil war in 1861, the newspapers published the Federal army’s plans for forthcoming movements, having got the information from the army’s generals. Undoubtedly, the sales of newspapers increased substantially in Richmond VA. We try to avoid equivalent mistakes.

We also know the difference between discreet and discrete, (otherwise we would be incomprehensible) and we try to avoid being that. In the same vein we distinguish our inferences  from perceived implications and we deplore the use of “presently” to mean “currently”.

We hope we can understand an opponent even, or particularly, where we disagree with him. Take the National Newspapers of Ireland, for example.  It is this writer’s contention that the NNI position on its claimed property rights in internet links may be an old and sad error; a failure to know and use the subjunctive  in writing or speech.

Be that as it may (4), such an error can end in trying to defend the indefensible and what lawyer, at least, wants to end there?

What is the subjunctive? It is one of the three moods of English verbs: the indicative, the imperative and the subjunctive. The subjunctive conveys ambivalence and uncertainty. (5)

NNI cannot deny the uncertainty of its position on links; it asked the Copyright Commission to remove the perceived (by NNI) uncertainty.

So, the original position of NNI was this:

“Were we to possess a property right in internet linking to our websites we would charge our notified rates”

Unfortunately if your journalists, particularly your editors, are unfamiliar with the subjunctive you will retreat to the indicative  or even the imperative: now you have rubbed everybody up the wrong way.

  1. Bilbo lacked legal advice. Surely he was more like a consumer than a professional burglar, as Gandalf had described his role? Nowadays if you go white water rafting, say, the organisers must ensure that you will come through the experience unharmed.
  2. This brings CPD (continuous professional development) to mind. We do our CPD quota of hours every year, and more besides. Otherwise, professionally, we are toast.
  3. In due course, when the shop in which he bought it went out of business we lamented to him how unforeseeable it was (not least for the shop) that that would happen!
  4. The subjunctive!
  5. When Phillip of Macedon sent a message to the Spartans – “You are advised to submit without further delay, for if I bring my army into your land, I will destroy your farms, slay your people, and raze your city.”, they replied; “If.” 

 

The Connacht Gold wall accident

The Health and Safety Authority is a good institution but an odd one. It was established under the Safety, Health and Welfare at Work Act 2005. It has as its central purpose, as recited in Section 34 of that Act,

“to promote, encourage and foster the prevention of accidents, dangerous occurrences and personal injury at work in accordance with the relevant statutory provisions”

So, oddly enough, when some customers were killed and injured in the Connacht Gold shop in Longford, the Health and Safety Authority, as it has done before, stretched its remit to investigate the incident. Actually, that is an overstatement; at least one employee was injured in the incident.

The most notable case of the Health and Safety Authority extending its remit (to the benefit of all) was the road accident in May 2005 in which five schoolgirls died when a Bus Eireann bus crashed in a single vehicle accident.

The Authority prosecuted Bus Eireann, Meath County Council and a motor service company for the accident. The anti-braking system on the bus was disabled. The motor service company noted this and left it like that. The county council commenced roadworks at the place of the accident without making a safety plan. These circumstances, mostly the disabling of the ABS, resulted in the accident.

The presence of the bus driver, a Bus Eireann employee, made the bus a workplace and conferred jurisdiction on the Health and Safety Authority.

It would be a good idea to make the jurisdiction of the Health and Safety Authority general and not simply limited to places of work.

It is also time to reform the law on liability of occupiers of premises as laid down in the Occupiers Liability Act 1995.

Faulty Beef Burgers

This is the appropriate editorial to replace that of the Irish Times of 2nd February 2013.

The blame for Ireland’s faulty beef burgers lies with the relevant Irish meat processors and, maybe, with someone in Poland. The testing of the burgers showed two pertinent facts; the animal source of the burger content and the proportion coming from each animal type. Of the tested burgers, most contained trace elements of horse and/or pig. One did not. That one burger, from Silvercrest Foods Ltd., revealed that Silvercrest’s meat constituent of the burger was one third horse meat. The other burgers, with traces of adulteration, were evidence of contamination, probably from the factory machinery. The machinery, in its turn, must have been contaminated by the very same source as the Silvercrest  burger; the meat the processors had put through the machines and into the burgers. The fact that there were traces only in those other burgers was not a relief; it simply showed the adulteration had passed through the factory and was, or had been, in an earlier burger production run.

Why did it take the Minister so long to discover Silvercrest’s meat sources led to, inter alia, Poland?

The fact that the public does not know the full facts relating to the adulteration of its food is the responsibility of the Minister for Agriculture and Food. It is unacceptable that the Minister persists in implying that unwittingly eating horse and pig meat is not a food safety issue. The public did not choose to eat horse or pig in the circumstances in which it ate those meats; the Minister is wrong to imply that the public does not know what is good for it, or that its loss of control over its food is not a big deal. Strictly, the Minister seems to think frozen burgers are fungible protein sources.

It is galling that Tesco is acting as the Minister should have acted; applying severe but appropriate sanctions to the guilty. Of what is Silvercrest guilty? It, reputedly, breached its contract with Tesco. It was limited under that contract to sourcing its meat from Irish or British suppliers. That contract would not have failed to stipulate that the meat was to be beef meat. When Silvercrest supplied Tesco it knew that the burgers, or some of them, were not in accordance with contract. Every such supply to Tesco involved a misrepresentation by Silvercrest. Unwittingly, presumably, Tesco in its turn misrepresented the contents of the burgers to its customers. In fact each of those misrepresentations was really a misrepresentation of Silvercrest to each consumer. Tesco was just a conduit of the falsehood. To suggest that this was a failure of quality control is, to be charitable, poor judgement. What Tesco describes as a “breach of trust” is clearly a breach of contract and a breach of Section 41 of the Consumer Protection Act 2007. It is an unsettled point whether it was also a breach of Section 42 of the Consumer Protection Act 2007.

It is disturbing that the Polish authorities are challenging the Silvercrest and Ministerial narrative of events. If Poland is not the source of the horse meat, what is the Minister going to do about that, resigning aside?

How to read a newspaper (continued)

Noted in the Irish Times, 2nd February 2013, page 6.

“Eoin was born in moderate condition at 6.35 am on July 30th, 2002, without any inherent defect or genetic abnormality, as the hospital, among various claims, had alleged”.

This sentence means the hospital alleged Eoin … “was without any inherent defect or genetic abnormality”. This cannot have been the case; there would have been no proceedings, for the newspaper to report, otherwise.

IT SHOULD READ:

“Eoin was born in moderate condition at 6.35 am on July 30th, 2002, without any inherent defect or genetic abnormality, despite various claims, including the contrary, by the hospital”.

How to read a newspaper

Noted in the Irish Times, 2nd February 2013, page 15.

 “With no evidence of fraud…”

This phrase means there was no evidence of deceit by Silvercrest Foods Ltd. There was in fact deceit. Tesco was deceived as to the sources of the burger meat; it described it as a breach of trust.

My online dictionary defines “fraud” as:

“a person or thing intended to deceive others, typically by unjustifiably claiming or being credited with accomplishments or qualities”

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