The Assumption of St. Ronald

McDonalds deserves to recover NO damages from the Tecoma 8, nor from anyone else for one simple reason: “assumption of risk“.

If you knowingly engage in an activity in which there is an obvious or clearly stated risk, you are not entitled to sue for damages in the event of injury sustained therein. Take for example, riding on a roller coaster. The operator of that ride must do “due diligence” to ensure the ride is safe and that no physical harm will come to those who ride it, such as may occur from malfunction of the ride or some component of it. However, they issue very clear warnings that people with certain medical conditions (e.g. heart problems, pregnancy) should not ride. They also point out that they are NOT responsible for items that may be lost during the ride (loose change, glasses, &c.)

If someone hops on the roller coaster, having seen the sign but decided to take the RISK of if it inducing a heart attack, they cannot expect to sue for damages should they, in fact, have an M.I. Same holds for the person who, say, looses spare change, or that expensive piece of jewlery that became dislodged and was ejected during the ride.

McDonalds boarded the Tecoma roller coaster knowing FULL WELL what they were getting into. They were told, in writing, in the media, on social networks, to their faces, by hundreds in person, and by thousands around the world: DO NOT BUILD IN TECOMA. You WILL be resisted.

But, they proceeded. They assumed the risk.

And now they want to recover damages due to construction delays and additional “unforseen” costs such as the security force they’ve employed? Who are they trying to kid, here? Oh, and they want attorney fees on top of that?

What HUBRIS!! What GALL!! What. A. Joke.

McDonalds KNEW there was a risk. They absolutely knew it. Their disregard, their arrogance, and their failure to live up to their own corporate propaganda — striving to earn the “trust” of communities — are all too evident. It is painfully clear that they knew what they were getting into. They assumed we weren’t serious. They assumed we’d grow weaker and give up. They assumed the risk.

They assumed too much.

McDonalds in Hot Water … Again

One of those so-called frivolous court cases people seem to recount often is the one in which McDonalds was sued by a woman who was scalded by coffee, purchased at McDonalds. The pop media made a joke of this, lampooning the woman as the archetypical “litigious American” who’ll sue anyone with deep pockets at the drop of a hat. In fact, it was an al-too-good example of just how proficient McDonalds PR department are at spin. The nearly 80-year-old suffered third degree burns (this is the kind where burn fully penetrates the skin) on her groin, buttocks, and thighs when the too-hot coffee spilled on her. She was hospitalised for over a week and required skin grafts and follow on treatment for the next two years. A jury awarded her over $2 million, but, in fact she received far less than this because McDonalds appealed the decision, tied her up in court for years, after which she finally settled for an undisclosed amount somewhere below $600,000. I’ll let you think about that for a moment whilst I set up for the next paragraph.

You see, McDonalds KNEW it’s coffee was too hot, but it’s management decided that they’d rather pay claims — over 700 of them, as it turns out — than lower the temperature of the coffee. They KNEW it, but because they have more money than decency, they chose to apply money, rather than decency, to the problem.

We have the same situation here in Tecoma, now. McDonalds KNEW it was not wanted up here. They claim the economics and zoning were favorable to building a store here. What they didn’t give any consideration to was that there is no DEMAND for one, here. I suppose they just reckon than if there’s no law against it, and it’s an area where disposable income per square kilometer is over some threshhold, they’ll put a store there, the community’s wishes be damned.

And now they’re suing us — specifically, eight of my neighbours and friends — essentially for putting up a huge resistance to their efforts to build here. They knew they weren’t wanted, and rather than do what a GOOD business does and simply look elsewhere to build, they bullied their way into our area, unwelcome, unwanted, and now unashamed of their rapacious tactics. They are claiming “injury” from not being able to build here. I say any such injury is SELF-INFLICTED. This is like the guy who jumps in front of an oncoming truck, gets run over, and then tries to sue the driver for the injuries he sustains.

There is no “law” that dictates limits on how hot coffee should or should not be. McDonalds could, in that case, claim that they did everything according to the law. And yet, through their negligence, as a result of their careless disregard for peoples’ well-being, they injured nearly 1000 people that we know of this way, at least one of them quite severely. They now find themselves in “hot water” with our community. WE didn’t put them there; they hopped in — no DOVE in — ignoring the very clear wishes of the community, and using legal thuggery to have its way in spite of our wishes.

They are feeling the “burn” and want to hold us liable for their injuries? Sorry, McDonalds. You got yourself into this soup, your own avarice drove you into a boiling hot caldron of your own making.

An Open Letter to Catriona Nobel, CEO, McDonalds Australia

Dear Ms. Nobel,

You have a golden opportunity to turn McDonalds Australia into a shining example of corporate responsibility and good citizenship by doing somethng very simple: Give up on building a store in Tecoma or anywhere in the Dandenongs. Now, I know, you’ve already bought the land there, made all these plans, and so forth. Let me point out that by donating that land to the town and buliding a park there — JUST a park, now — and using it as a sort of “rainbow” to tell all of Victoria — promise to all of Victoria — that you won’t build any stores in the Dandenongs, ever, you will score mega-tonnes of community love and appreciation that would otherwise cost BILLIONS. It’s cheap advertising, and a win-win for you and for us here in the Dandenongs (especially those of us in Tecoma.)

I’m writing this not because there’s Buckley’s chance of you ever reading it, let alone taking it to heart. But, I just wanted it to be out there, in writing, that you had your chance to make this all come out right. You had the power and the opportunity, and, so far, you’ve simply squandered it.

I’m sure your board of directors will be very, very impressed come the next shareholders meeting.

Warmest Regads,
Nick Seidenman
Tecoma VIC

In response to a question on McDonalds rubbish …

The following was posted on the No Maccas in the Hills facebook page today:

No matter how many signs you put on a product and all of them request that you dispose of your garbage responsibly. It is ultimately the person who choses to discard what is not wanted and the manner of its disposal. As is with alcohol companies that request you to drink responsibly, yet many people still chose to get blind drunk. Do they force people to that outcome and are they the ones to blame for countless of alcohol related incidences. It is inherently the choice of the individual to behave in a responsible manner and no one is to blame but themselves

Ps is it the fault of maccas or c.u.b. for the accompaniment of empty stubbies that often is discarded in the same place?

I offered the following response:

I think this is a strawman argument. I don’t think anyone is suggesting that McDonalds is somehow responsible for where and how their customers choose to dispose of their rubbish. The fact remains, however, that even without a McDonalds in Tecoma, we have McDonalds rubbish being discarded here, be it by customers carelessly or deliberately leaving it anywhere but a bin, by animals fossicking in bins where it has been discarded, or simply carried by the wind. In all cases, the proximity of a McDonalds is more or less directly proportional to the amount of McDonalds-branded rubbish that you’ll find within a given area.

Rubbish is but one of several (strong) reasons why we didn’t want a McDonalds in Tecoma, all of which were put forward to our council and to VCAT. The issues now go beyond these, and pertain to the strong-arm tactics used by large corporations such as McDonalds when they don’t get their way through democratic means. We’re not talking about not wanting, say, a home for indigent aboriginals, or a mosque, or some other basis that can be considered on philosophical or even legal (as in constitutional) grounds. This is about whether or not we as a community have a say in who or what does business here — WHATEVER the reason.

Were this a matter of, say, a couple hundred of us against it, but the rest of the community not caring or being in favor, and were this a matter of a council vote that was split, or even 5-4 or 6-3 in favor, we wouldn’t be having these discussions. There’d be some room for debate on the issues. This is not the case, clearly. The community turned out by the hundreds, sent in over 1,100 written objections to the proposed permit, and the council voted UNANIMOUSLY against issuing that permit. There was no ambiguity here. None. Those who truly wanted a McDonalds here had just as much access and opportunity to say so. To be sure, there were perhaps a dozen or so such proponents at the meeting where 600 of us watched proudly as our council voted it down.

The issue at this point is beyond the rubbish and the noise and the loss of amenity and the impact on well-being. The issue applies to all of us, regardless of where any individual or group may stand on McDonalds per se. This is about corporation showing utter disregard for the will of a community, clearly stated through democratically elected councillors voting unanimously, in accord with that community. Today it’s about McDonalds; tomorrow, it could be about gas drilling, or a scrap metal processing yard in your town. This isn’t just OUR issue; it’s everyone’s issue. We win this, we all win. If McDonalds wins; we all lose. All of us.

An open letter to the “Yes Maccas” proponents

To the Yes Maccas folks:

“If you don’t like Maccas, just don’t eat there.”

So say those who favor a McDonalds in Tecoma. But, is that really the issue? Do you suppoose that we’re afraid Ronald and his minions are going to come storming into our homes and force that McCrap down our throats? Of course not. It’s a correct answer, so it sounds reasonable. The un-asked question, however, makes it absurd.

The “why” of not wanting a Maccas isn’t really relevant. The fact is, we, the residents of Tecoma — and more generally, the Dandenong Ranges — simply don’t want one here, for whatever reason. And we, being residents here, owning property here, having a real vested interest here, as a community have a right to determine the character and composition of OUR community. We have MORE of a right to that than ANY individual or business has to say otherwise. This is especially true of a business that doesn’t currently exist there. We have spoken, in a voice that is loud and clear. We don’t want a Maccas here. Period.

That voice was not only ignored, it was silenced not by reason, but by corporate money and greed. McDonalds is only the latest example of an ongoing effort on the part of large, monied interests to neutralize the obstacles that stand between them and making ever more money — at our expense.

Those who wanted a Maccas in Tecoma had just as much time and opportunity to respond in favor of it as the more than 1,100 of us who filed objections to it. The council meeting during which the permit was unanimously voted down was attended by over 600 of us who objected; I counted no more than a dozen — and I’m being generous — in favor of it.

The council vote should have been the end of the story. Instead, Maccas sued in VCAT, not JUST to build in Tecoma, but … and here’s the really important part, folks … to show that they could nullify the will of the people, that they could silence our voices, to show that they were indifferent to, even spiteful of the quality of life we want in the Hills. To show that Democracy itself is
irrelevant to them and to anyone, any corporation with enough money. Why, again, is irrelevant. It’s simply what corporations do: they make money, as much of it as they can.

The voice of the community — thousands of us — was clearly heard by the council, and they responded appropriately in denying Maccas the permt to build in Tecoma. You had a voice, too. It wasn’t nearlly so loud. But you threw in with the folks with the big money, and, as they say, money talks. It talks, it shouts, and, in this case, it drowned out the voice of the clear majority of people. You may think that this went in your favor. Ultimately, it will not. Today you, who favor a Maccas in Tecoma, think that you’re on the “winning” side of this issue. I suspect that, before long, You will see that we all lost on this one, all of us. The voice you thought was yours was simply the Money talking — you were just mouthing the words for it. One day, soon, you will find your rights trampled, your voice silenced.

You don’t like having your rights trampled, don’t like being told to shut up?

Just give up your rights, and don’t say a thing.

Tecoma, McDonalds and the Corporatocracy

The gist of what I’ve been saying is that this isn’t really about McDonalds per se, nor is it about the people who choose to consume their products. That comes down to a matter of making personal choices, and I’m all for that.  Rather, this pertains to our fight in as much as we, as a community, were not allowed to choose whether or not McDonalds would be permitted to build here. The legal and regulatory (read: planning and environment scheme) framework to support that choice were obviated by TWO people — the VCAT members Megan Carew and Geoff Rundell — who heard our case. Our community solidly and unambiguously opposed the development for reasons that, honestly, did not include whether or not the food is objectively good or bad. The reasons DID include the impact the business would have on the local community, socially, environmentally, and economically. The strongest case McDonalds could make was in that latter category and even THERE it was at best specious (sounding plausible but, with closer scrutiny, found to be false.) McDonalds likes to tout the jobs and income it will bring to the community, yet it will not reveal any details about its supply chain (it will buy most of what it sells from outside Victoria), nor will it be candid about plans to replace counter workers with self-ordering stations, thereby reducing the number of actual humans it needs to run the joint.

In the larger scope, this is not something that is unique to McDonalds. Rather, they are behaving with the same sort of dearth of values and decency that is systemic to any corporation. Does this make corporations “bad” per se? I would argue, no, it does not, any more than not having such values makes a saw or lawn mower “bad”. What these all have in common are that they are TOOLS, the intent of which, ultimately, is to give us HUMANS a better quality of life. They do this by making tough jobs easier, or — and this applies to corporations — allowing us to accomplish things together in groups that would be highly difficult or even impossible as individuals.

Things go pear-shaped when we, individually or corporately, lose sight of this very simple truth: we all just want to live the best life possible. We forget that this requires a balance between what’s “good” for us individually and what’s good for us collectively. When that balance is lost, when those responsible for the vision and guidance (call it governance) of a corporation lose their way, when their moral compass deviates from the optimal path to simply the fastest (i.e. get-richest-quickest one, we have a TOOL operating without an artisan in control, a ship — perhaps even a massive one — assundering all in its path. The fate of all such rudderless vessels can be found in the shoals and reefs of history, succumbed to the tides that are the “business cycle”, and driven aground by the winds of fashion they themselves may have helped to create.

A socially responsible corporation is a very powerful tool for good in this world. if McDonalds were to actually adhere to their own high-sounding statements, we wouldn’t be having this discussion, there would be no McDonalds in Tecoma or the Dandenongs, and they wouldn’t be such a huge contributor to childhood (and adult) obesity and diabetes in ‘western” (and westernised) countries.

The sad truth is that McDonalds, like so many corporations today, is not socially responsible. Instead of being guided by people, the corporate mantra — make money for the shareholders, all else be damned — is the guiding principal. The only thing standing in the way of any corporation simply robbing us blind or even killing us for the sake of profit is the body of law by which we — people — form them and by which they are regulated. The aim of corporations, that is, making money above all else, being what it is, has of late become one of undermining and eliminating these regulatory structures. To put it simply, corporations want to BE the government, not be restrained by it.

In despotic regimes, they do this by simple bribery, whch their great (and growing) wealth facilitates. Democracies, however, present corporations with a vastly different problem: Money is worthless in that realm; the voice(s) of the governed are what count, for it is THEY who empower democratic government.

So, what to do? Get rid of democracy, that’s what. But … how? You could try the direct method: hire armies of mercenaries and overthrow the government by force. This has been tried, and occasionally succeeds, but it more often than not proves to be costlier in the end than the less direct method. Disempower the government by disempowering the GOVERNED.

If you can, little by little, replace various, key elements of democratic government with ostensibly legal, but otherwise undemocratic, unelected, unaccountable ones that seem functionally equivalent, you can gradually close off all the avenues of remedy when those replacement elements begin to favor the corporatocracy. You don’t eliminate the democratic process; you put a price on it, and a high one at that, in currency that corporations have in seemingly endless supply, that we, as individuals generally do not — money.

Which brings us back to our fight against McDonalds. VCAT is a clear example of how a democratic process is replaced with one that is undemocratic and unaccountable.  VCAT was created to help “streamline” the lower court system in Victoria, which was, according to the MPs behind the legislation that created VCAT, “drowning” in small claims, tenant-landlord, falure-to-pay, and so forth cases. To be fair, it has greatly increased the speed and, arguably, the equity with which such cases are now dispensed. However, it can, and does, routinely overstep its bounds, as it did in our case. When this happens, the only recourse is to the Victorian Supreme Court. But this is, and always has been, a hugely expensive proposition for any litigant. It is made doubly so when such cases award costs to the “loser”.

We, of Tecoma and Shire of Yarra Ranges, used the tools of democracy — our elected, accountable council — to examine, debate, and finally turn down McDonalds permit. McDonalds lawyers were ready for this, knowing that it would go to VCAT and that there, they could put on a case that, for all its “legal” verbiage would come down to who could throw the more ostentatious party — who could spend the most. Clearly, that was McDonalds. They had literally NO case, legally; the VCAT members’ ruling never even questioned whether council had the right (and responsibility) to deny the permit. VCAT’s decision was all about finding a way to interpret planning law that would be favorable to McDonalds.

McDonalds, then, is merely the current battlefield on which a much, much larger fight is being fought: to bring corporations to heel, to do what they’re supposed to do, to be ruled by us, not be tools for the wealthy few to rule us.

What Our Protest Means to Me

Our protest isn’t about McDonalds per se. Our protest is mainly about protecting the democratic process by which we determine the character and composition of our community. Our local council spent months carefully studying the McDonalds application. They also received an unprecedented number of written objections from our community — over 1,100 of them — and carefully considered the application before finally, unanimously voting to deny it, as is their right and responsibility under planning scheme clause 65.

McDonalds took the game to a “court” where democracy is irrelevant, where the party who can put on the more expensive show stands the better chance of winning. McDonalds, having the bigger purse, won in that venue. Two people, who are not judges — they’re not even lawyers — who are not elected, but appointed by the governor general, overturned our council’s decision after just a few days of hearings and deliberation.

Our council considered an appeal to the Vic supreme court, but McDonalds had already threatened to sue for costs should that appeal fail. Afraid of the risk of having to pay perhaps as much as a million dollars or more in the event of such a loss, the council voted against pursuing it further. This was a matter of dollars winning out over democracy, plain and simple.

This isn’t just about McDonalds and why it may or may not be good for your health or for the community. This is about large corporations circumventing or altogether obviating the democratic process by using unelected, unaccountable decision-making entities such as VCAT. Today it’s about McDonalds in Tecoma. Tomorrow, it could well be about gas drilling or a landfill in YOUR town. THAT is what our fight is really about.