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Dropping bro on his head? Reasonably foreseeable, your Honour | Marcel Strigberger

Friday, October 15, 2021 @ 2:24 PM | By Marcel Strigberger

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Marcel Strigberger %>
Marcel Strigberger
Mistakes. Also known as errors, blunders or in my best legalese, boo-boos. Do lawyers make any?

When I think of historical mistakes, I visualize the Leaning Tower of Pisa. What happened? Surely the architect should have noticed that it was not rising according to plan. None of us would allow our houses to be built off perpendicular like that without at least e-mailing the builder saying, “I don’t know. When you get a chance, please drop by and have a look.”

I Googled to see if anybody ever took legal action but saw nothing even remotely resembling, Municipality of Pisa v. The Tower Pros.

My own recollection of the mistake concept goes back to when I was a 10-year-old when I accidentally dropped my younger brother while playfully performing an over the shoulder wrestling airplane spin. This aerodynamic manoeuvre gone wrong did not sit well with my dad. He was not consoled by my eloquent pleas that it was just an accident. I won’t go into details of the punishment outcome other than say I should have been offered a cigarette and a blindfold.

Which brings me to negligence and the 1932 game changer landmark case of M ’Alister (or Donoghue) v. Stevenson. In short, May Donoghue suffered physical injury and nervous shock after finding a decomposed snail in her ginger beer, in a pub. She sued the manufacturer Stevenson, and her claim was successful even though there was no privity of contract. The court delivered access to justice, ruling that the manufacturer owed a duty of care not to harm its neighbour.

Most likely this ruling acted as a deterrent to others not to be sloppy as I have never come across another case of a decomposed snail in a bottle of ginger beer, (in a pub). 

However negligence is not generally strict. If there is anything any law student remembers from law school, it’s two words: “reasonably foreseeable.” In trying to determine negligence, the iconic phrase is whether the tortfeasor acted like the “reasonable man on the Clapham Street omnibus.” (I would have preferred law schools here to say something more local, like perhaps the “Bay Street bus.” Maybe after the COVID pandemic).

This hypothetical person is supposed to be your Mr. Average. He is not overly cautious, yet he is prudent enough to go out after a bout of freezing rain and dump a shovel of salt on his frosty walk so that reasonable people visiting him later on don’t slip and fall and break a reasonable leg.

The question is what he (or she) would have done under the circumstances.

But it is not always easy to admit screwing up. I often heard clients involved in motor vehicle accidents plead, “I looked both ways before entering the intersection. The coast was clear and suddenly bang, this guy came out of nowhere.”

I usually asked innocently, “But surely he had to come out of somewhere?”

“No, he wasn’t there when I looked. I tell you he just came out of nowhere,” replied he with the innocence of Forrest Gump.

As I experienced a number of similar rationalizations over the years, I wondered, is there a “nowhere”? I gave this matter some thought.

I looked at a dictionary, and it defined nowhere as “a place that does not exist.”

At least there is an element of certainty in that definition.

And how do we react when we drop the ball? I once arrived at a court hearing at 9:55 thinking the start time was 10. The judge bellowed that it was scheduled for 9. I responded with, “I’m sorry sir.”  He was not too forgiving, saying, “An apology is just a social crutch.” Fortunately after raking me over the coals first, he adjourned my hearing. I was thinking about what else I could have told him to express my regret. I doubt it would have helped to say, “It was an honest mistake,” or “oops” or certainly not, “Make no mistake about it. I thought I was five minutes early.”

We lawyers carry mandatory errors and omissions insurance a.k.a., E & O insurance. For some reason that term reminds me of a Monopoly railroad. But the price is a lot higher than $50 if you ever land here. Six thousand dollars deductible plus additional annual penalties. I’d rather take a ride on that Clapham omnibus. (Or make it that Bay Street bus.)

Now here’s a surprise. Even judges make mistakes.  Our notices of appeal read something like:

1. The learned trial judge erred in that he …

2. The learned trial judge also erred in that he …

3. The learned trial judge further erred in that he …

Judges are human. I don’t know about you but after this appeal, I’d hate to plead another case before this learned trial judge.

We all make mistakes sooner or later. I am reminiscing. Had I known as a kid what I know now, I wonder if I could have gotten off free had I told my dad that my airplane spin with my brother would have been approved by that gentleman on the Clapham Street omnibus.

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His just launched book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available on Amazon, (e-book) and paper version by pre-release sale order. Visit Follow him @MarcelsHumour.

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