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| Marcel Strigberger |
Of interest this case lacked many of the accoutrements common in personal injury actions. There were no lawyers, no medical reports or records filed, and as for the minors’ representatives, the judge, Brian Hougestal, did not find out whether the litigation guardians were the players’ parents or not. Bizarre?
At the end of the day, His Honour found there was no evidence that the defendant’s parents encouraged their son to use Dino as a weapon. Nor was there evidence that they came up short in their child-rearing, or that they failed to properly supervise their son.
The judge dismissed the action. He noted, “Children in these situations are within the expected scope of risk of injury, especially a difficult to foresee risk.” I don’t see the risk as being difficult to see. To me, it was obvious. This was a melee waiting to happen. When a dinosaur comes between two kids at a daycare, there’s trouble on the horizon.
There is no indication what they were arguing about. Presumably one kid said the raptor was a brontosaurus while the other maintained it was a Tyrannosaurus rex. I can readily see this type of argument leading to a confrontation dwarfing that in West Side Story. Some kids take their dinosaurs seriously.
Justice Hougestal actually called the incident “an unfortunate fluke.”
I must disagree with His Honour. Has the court created a new defence to a claim in negligence? Unfortunate fluke? Is it like an act of God? Similar outcome. Except with this latter defence you don’t dare sue the perpetrator — lest you get struck by a lightning bolt.
Are defendant lawyers now going to make a mad dash with motions before the court to amend their Statements of Defences?
14. The defendant pleads that the incident, if it happened, which is not admitted, was not his fault. He pleads and relies on the defence of unfortunate fluke.
Has His Honour opened a Pandora’s box of litigation? What legal concept will grace the law next? A fortunate fluke?
Is the outcome an affirmation similar to the concept of scienter where dogs get one free bite with impunity? Hey, if you’re a kid and you have a dinosaur toy in your hands and some other kids comes along and a struggle ensues over the overgrown lizard and you want to swat the other kid with it, go for it. No problem.
The judge assessed the case for general damages for pain and suffering in the amount of $10,000. Fortunately, the plaintiff made a decent recovery.
Incidentally, is anyone wondering what happened to the daycare centre? It went bankrupt. Gone — like the dinosaur.
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book, Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging, is available on Amazon (e-book) and in paper version. His new(!) book First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe, is available on Amazon, Apple and other book places. Visit www.marcelshumour.com. Follow him on X: @MarcelsHumour.
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