The Bachelor: Defendant Edition

Some of us recall those days of law school with nostalgia, if for nothing else the colourful stories which set precedent on key issues of law. “They lied to us,” we think as we look at the files we work on which pale in comparison.

Sometimes we’re lucky enough to encounter this colour in practice today. The colour in this case is pink, in the form of tights attached to a soon-to-be groom who was also wearing a feather boa and a lace shirt. He was even dragging an actual metal ball and chain weighing 32 pounds, affixed to his ankle.

Justice Sigurdson described this bachelor party attire in his decision in Robinson v. Bud’s Bar Inc. as “an invitation for derision from bystanders.” One of the bystanders was the plaintiff, an arborist (read lumberjack) who was attending the same bar as the bachelor, but not part of his party.

The actual confrontation didn’t occur until later in the evening (or perhaps the early morning), after the bar had closed. The plaintiff approached the defendant bachelor and began to tease him about his attire, and the fact that he was getting married, obviously using foul language when doing so.

Us city folks dress up as lumberjacks at bachelor parties. I’m not sure what the lumberjacks dress up as.

Omar Ha-Redeye at a bachelor party in 2014, throwing axes as a lumberjack. Slightly more liability here, but also quite a bit more volenti.

Omar Ha-Redeye at a bachelor party in 2014, throwing axes as a lumberjack. Slightly more liability here, but also quite a bit more volenti.

Others at the scene repeatedly asked the plaintiff to leave, but he continued. Perhaps tellingly, the defendant did not have the same mobility as the plaintiff given the party accessories attached to his leg. The plaintiff persisted.

Attempting to leave the confrontation, the defendant suddenly and somewhat forcefully pushed the plaintiff out of his way. The defendant fell off the elevated sidewalk on to the street, where he immediately lost consciousness.

Despite the brevity of the confrontation, the impacts on the defendant were far reaching. The physician inspecting the plaintiff described the medical background as someone who,

… experienced a severe head injury on July 31, 2010 which resulted in extensive post traumatic imaging findings including grade 1 and 2 diffuse axonal injury, subarachnoid hemorrhage including involvement of basal cisterns, intraventricular hemorrhage, multiple subdural hematomas, small epidural hematoma and left frontal and bilateral temporal hemorrhagic contusions. Delayed imaging demonstrates progressive post traumatic generalized cerebral atrophy which is at least moderate in severity by the final MRI examination of July 8, 2013. In general, patients with these injuries can expect to have persistent neurocognitive, psychological and behavioural difficulties. As well [the plaintiff] is at increased risk of early mild cognitive impairment, early Alzheimer’s dementia and post traumatic seizures.

The plaintiff claimed general damages, past wage loss, an in trust claim, cost of future care, and loss of earning capacity. He would be reduced to cutting minor shrubs and bushes, instead of felling major logs.

Justice Sigurdson found this action by the defendant to be negligent, as he pushed the plaintiff away from him carelessly.

The defence of self-defence did not apply, as there was no evidence of actual or threatened harm, the amount of force was not necessary or proportionate to the threat, and the contact was not trivial.

However, the defendant was free to walk away at any time and continued teasing in close quarters despite being told to back off. He was also intoxicated to the point where he should share some of the responsibility. The bachelor’s strange attire was not an invitation to others to come into his personal space and harass him.

The defences of contributory negligence and provocation applied here, and the damages of $790,000 were reduced by 30% on that basis for a total award of $550,000.

The plaintiff also attempted to sue the bachelor’s brother, who dropped the party off at the bar, remained sober watching television in a corner by himself, and did not consume any alcohol. The brother’s apparent negligent act was attaching the ball and chain to the defendant after the party had left the bar.

The court actually heard case law on the subject. The plaintiff cited Harrison v. Biggs in support of the proposition that those accompanying someone encumbered with a ball and chain owe him a duty of care. In that case, the bachelor was the plaintiff and was running away from his friends with the ball over his shoulder, before falling through a plate glass window.

The defendants in Harrison, his buddies, claim the bachelor plaintiff tripped over the chain, and may have punched the window, a submission the trial judge rejected. The plaintiff bachelor claimed instead he fell through the window when running away from his friends. The massive lacerations and blood loss resulting to his arms and hands would have resulted in death without the immediate medical attention he received.

With parties like these, you wouldn’t even need the trauma of a marriage.

Justice Sigurdson did not find sufficient foreseeability here to impose a duty of care, and the two-part test in Anns v. Merton London Borough Council adopted in Childs v. Desormeaux, did not justify the imposition of a new duty,

[67] The plaintiff has not established that it was reasonably foreseeable that the failure of [the brother] to intervene, or keep bystanders at bay, or manage or supervise [the bacherlor]’s behaviour, could cause harm to the plaintiff. The ball and chain was put on [the bacherlor] with his consent and the defendant [the brother] did not know that [the bacherlor] was grossly intoxicated and a threat to others.

This was more like a situation with a fellow partygoer and a member of the public. The bachelor did not have a history of fighting, and by walking away his brother was trying to encourage the others to do the same, not to engage in a confrontation. The brother could not be found liable in this situation.

The moral of this story is the literal ball and chain may pose a greater threat to your health ,and to others, than the metaphorical one. And that city folks would probably get harassed more for looking like lumberjacks than they would wearing pink tights.


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