The Jeff Cumberbatch Column – Dancing with Danger

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

Now show meh yuh slackness, show meh yuh
Went and practice,
Lucy is ah Carnivalist, and that is why I
Behave so loose! –
“Lucy” by Destra Garcia (2015)

Two incidents last week, both concerning an activity as mundane as dancing, have provoked the discussion of complex issues of propriety and legality in the public domain. Certainly, these provide a respite from the seemingly interminable diet of partisan political discourse that has been a staple in recent months, although one expects that this latter is likely to grow exponentially as the nation approaches the constitutionally stipulated demise of the current Parliament.

The first incident occurred at a local event, lengthily titled “Water Explosion -Party in the Tropics”, where the ubiquitous smart phone of an amateur journalist captured the image of a youthful lad vigorously engaging in a ribald mimicry of what the Jamaicans call “back shot” with a much larger woman who appeared as enthusiastic a participant in the activity as did the boy, whose actions of whipping the ample bottom of the female with his open hands betrayed an education that was decidedly extra-curricular. Needless to say, as is a given these days, the clip was published on social media and, ineluctably, went viral.

I must confess that my first reaction to the video was one of unbridled mirth. The sheer incongruity of this slight youngster wining on the sizeable buttocks of the adipose woman evoked memories of a cartoon motif I had seen on the T-shirt of a student some years ago. There, a slender man is portrayed stuck between the bottom cheeks of a large female as she inquiringly pleads, “Harold, where are you?” The probability of a real life re-enactment of this scenario seemed eminent from that posting.

However, I also appreciated that the ability to see the humour in any situation such as this is not an instinctual response of most Barbadians. Rather, attempting in righteous indignation to outdo a previous opinion is more in keeping with our nature and, given that it involved a minor, I sensed that my initial reaction would be an outlier from the popular one. The proof was not long in coming. There were some whispers of child abuse and calls for the awesome prosecutorial power of the State to be brought to bear on those “responsible” for the incident in spite of the clear intent of the parties. And the chief executive officer of the National Cultural Foundation, the organization that promotes the annual parade of the bands on Kadooment Day, ironically called for promoters to maintain a level of decency and decorum on stage.

I am mindful that in a jurisdiction where there is the constitutionally guaranteed freedom of expression, there will be a plurality of views on any given issue, but where a perspective that would create a mock reality of “this-does-not regularly-happen-here” informs these views, then we are being patently hypocritical. That youth did not learn those movements in the classroom nor at Sunday school; but he did not need to. Not when there is a diet of simulated “backshot” on public display on all forms of media in this season.

What more should we demand of an impressionable prepubescent youngster keen to prove himself a man? The fault, as some character once intoned, is not in our stars…

Consent, yes…but to what?

The second incident concerns a story widely reported in the regional press and on other media that popular soca artiste, Ms Destra Garcia, has been ordered by the Supreme Court of Belize to pay a sum of more than $ 16,000 in compensation to a claimant fan who suffered a ruptured bladder owing to her negligent conduct during an on-stage performance in Belize in 2015.

According to the reports, it was during Destra’s performance of her hit song. “Lucy”, the male claimant was invited on stage and instructed by her to lace face upwards on the stage, to close his eyes and to put his hands behind his head. Next, Destra is alleged to have told him, “If you’s a bad boy, I will treat you bad”. Then, turning to the crowd, she sought their approval, “Treat him bad, allyuh?”

Having duly obtained their fiat, she proceeded to suddenly jump in the air and land her body heavily onto his pelvis, thereby causing the injury that necessitated surgery.

The suit was undefended by Ms Garcia, but it nevertheless provides an object lesson in the law of negligence, especially the defences thereto, for interested persons.

One popular reaction on social media was that the claimant had consented to go on stage and thus, in local parlance, “got precisely what he was looking for”. Or, simply put in legal terms, that he was either contributorily negligent to his injury, or that he had voluntarily consented to suffering it.

On the facts, both of these assertions are, it is summited, difficult to maintain. It would be a quite a stretch to suggest that the fan contributed either to the accident itself or to the extent of the harm suffered merely by accepting an invitation to come on stage to participate in a scenario.

Likewise, a defence of voluntary consent to the harm or, as it is more frequently put in Latin –“volenti non fit injuria”– should ordinarily require a finding that the claimant by his conduct impliedly agreed that any harm likely to be suffered by him or her would result in no liability to the defendant and thereby no compensation being awarded to him or her.

Such a holding requires the clearest evidence and is available in circumstances such as those in one reported decision where the claimant and the defendant went on a joint drinking binge, consuming seventeen whiskies each and the claimant thereafter went on a light aircraft trip with the defendant at the helm and suffered injury in the consequent crash.

There are, of course, other cases where the defence may be applicable but, as has been put elsewhere, this case is not that case.

It should be noted that this determination has been made on a construction of the facts that is most favourable to Destra, that she was liable for mere negligence. Indeed, on another view, she might have been also liable for battery, unless she had first obtained the express consent of the claimant to her invasion, by the application of force to his person, of his physical integrity.

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95 Comments on “The Jeff Cumberbatch Column – Dancing with Danger”

  1. Simple Simon July 10, 2017 at 9:13 PM #

    @Well Well & Consequences Observing Blogger July 10, 2017 at 3:28 AM “How could any of that make sense to educated, intelligent people.”

    Who you calling educated and intelligent?

    Like

  2. Simple Simon July 10, 2017 at 9:17 PM #

    @Dumpy July 10, 2017 at 4:20 AM “Let us assume a man engaged in a consensual sexual intercourse a woman, but unknowing to the woman the man had HIV, and during this sexual encounter the man was wearing a condom which ruptured and inflected the woman.
    Question: is this man liable criminally or civilly for the injure he caused this woman though his intent wasn’t to cause her any harm, which is made evident by the condom he wore during this sexual encounter?”

    Yes this man liable criminally or civilly for the injury he caused because he ought not to have engaged in sexual intercourse with the woman without first informing him that he was HIV positive. Then she could have given true informed consent, or could have withheld consent.

    Like

  3. Simple Simon July 10, 2017 at 9:21 PM #

    Here is a little reading for you Dumpy
    http://www.aidslaw.ca/site/wp-content/uploads/2014/09/CriminalInfo2014_ENG.pdf
    The obligation to disclose HIV positive status under Canadian criminal law

    Like

  4. Simple Simon July 10, 2017 at 9:26 PM #

    Well Well & Consequences Observing Blogger July 10, 2017 at 10:23 AM “Those with clear consciousness know they can go at any time and are already prepared…with an even clearer conscience. …no sudden death can shock them.”

    Actually Well, Well people are NEVER shocked by their own sudden death.

    Like

  5. Simple Simon July 10, 2017 at 9:33 PM #

    @Hal Austin July 10, 2017 at 10:44 AM “So responsibility has moved on to the Registrar’s department, and in particular the Listings Officer. Was the case listed to be heard? If so when and before which magistrate? If it has not been listed in seven years can the attorney general, Registrar or Chief Justice please explain to the public the cause/reasons for the delay? Can they give a time span within which it will now be heard?”

    Since the attorney general, Registrar or Chief Justice are highly unlikely to respond to you through this forum, may I remind you that the Prime Minister himself told the people of Barbados that “the man [Leroy Parris] is not a leper, he is my friend’

    Pick sense outta dat.

    Like

  6. Simple Simon July 10, 2017 at 9:35 PM #

    @Bernard Codrington. July 10, 2017 at 11:08 AM “Due process, as you know, takes an inordinately long time in Barbados.”

    Justice delayed is justice denied.

    Like

  7. Well Well & Consequences Observing Blogger July 11, 2017 at 4:36 AM #

    Simple….as cold as it can get on the blogs sometimes, I like giving everyone, including the yardfowls on the blog the benefit of the doubt and presume everyone is educated and intelligent, despite a few displaying on a nearly daily basis what dumb asses they really are, I still give them the opportunity to prove themselves wrong…lol

    …..ya challenging Hal by asking him to pick sense out of simple common sense….that is an immense challenge right there…lol

    Re….”shocking deaths”….am sure the experience woukd be mire of relief in some cases, sadness in others, but I doubt shock would be involved, only the living love to be shocked even knowing death is unavoidable and visits anyone at anytime.

    In DPPs case, I understand he may have had an adverse reaction to anesthesia, which is unavoidable, known to happen, rarely happens particularly in prostate surgeries, particularly in that new procedure, but with other health issues involved, quite possible, particularly if a person is genetically prone to heart attacks….so he would have been happily asleep anyway.

    ….. it’s the living who are always shocked despite knowing that death is a drop in, unannounced visitor most times..

    Like

  8. Dumpy July 11, 2017 at 6:16 AM #

    Thank you Simple Simon, but I thought when you engage in a sexual act you assume the risk of infection because of the number of sexually transmitted diseases known to the public? And this is analogous to working in a medical setting where you use Universal Precautions because of the Hipper Law here which prevents the hospital or any medical establishment from disclosing what contagious or sexually transmitted disease a patient has.

    Like

  9. Hal Austin July 11, 2017 at 6:29 AM #

    What does the PM’s comments got to do with due process? We cannot always excuse our collective failure on ‘that is the way we do things in Barbados’.
    But there are still failures of the system: if Clico had sold unauthorised policies, the regulator should have the authority to close the business down; then there is re-insurance, since these policies would have been high risk; then there is the actuarial involvement, is there a disciplinary body for actuaries? And, as I have said, who was/is the listing officer? Should s/he be also disciplined.
    It is cheap and basic to pick the low hanging fruit – Mr Parris, his legal advisers and colleagues – and not the system.
    The problem is that financial regulation in Barbados is hopeless, no matter who the individuals are holding the positions, who the politicians are or how close they are to business people.
    It is the system. Get over it.

    Like

  10. David July 11, 2017 at 6:36 AM #

    @Hal

    This is a debate you will struggle to win support everytime on the merits. Yes the regulator has a role to ensure safeguards are followed, however, under the Company’s Act the officers of any compnay have a fiduciary responsible to engage in behaviour that protects the interest of said company. This is why the CL Financial/Clico debate is so interesting because of the catastrophic failure on many fronts by the players.

    Like

  11. Hal Austin July 11, 2017 at 6:56 AM #

    David,
    Insurance companies do come under Company law, but the most important are the regulatory and supervisory regimes, under which insurance companies must not only obey the letter of the law, but the spirit of the law.
    That is why you cannot have rules-based regulation, the lawyers would make mince meat of you. But under principles-led regulation, the spirit is as important, even more so, than the letter of the law.

    Like

  12. David July 11, 2017 at 7:18 AM #

    @Hal

    And the FSC has guidelines outside of the law that should govern how individuals operate as officials of insurance companies Anyway this is a murky issue, lot of grey.

    Like

  13. Bush Tea July 11, 2017 at 7:23 AM #

    Hal does so well when asking questions…
    It baffles the mind how he is able to so smoothly go on directly to talking all kinds of shiite right after good questions.

    Take his 6:29 Am for example.
    Good questions right up to the point where he defines Greenverbs as ‘low hanging fruit’.

    How could a man who was able to pay himself millions of dollars in salary and commissions; bribe prime ministers; intimidate a slate of Board Members who represent the “who’ who” of Barbados (despite himself being a poorly educated ex-driver by profession); and remain free as a bird eight years on …. be a low hanging fruit?

    Does Hal not yet understand that the ‘System’ in a place like Barbados is DIRECTLY related to the quality of the individuals holding power at the time?
    …is the man daft?

    …then to complicate matters, he goes on to promote “principles-led regulations and the ‘spirit’ of the law” at 6:56 AM.
    Boss, it is based on EXACTLY this concept that everyone else thinks that Parris is a low-life thief ….who should be treated like the common thief that he is….
    The same goes for those individuals who failed the ‘SYSTEM’….. and perhaps even more so to those like you who seek to make excuses for them all….

    Like

  14. Hal Austin July 11, 2017 at 7:26 AM #

    David,
    Key officials are also regulated. It is not murky, our regulators do not understand their roles. The other problem is that regulation is not a legal regime, it sis multi-disciplinary.
    Tell you a little story. Shortly after the global banking crisis I attended a financial regulation course, there were twelve of us – ten in-house lawyers and the majority of solicitors from what we call the Magic Circle (top law firms) one housing barrister and one non lawyer (me).
    It was a course in how lawyers (nay, solicitors) capture financial regulations and force out all others. They are clever. We must not allow that in Barbados.

    Like

  15. Well Well & Consequences Observing Blogger July 11, 2017 at 10:23 AM #

    Hal will beat himself to death on that subject before realizing he can never win that argument. …on the merits…not as it pertains to incestious practices and corruption….between all involved.

    Like

  16. Well Well & Consequences Observing Blogger July 11, 2017 at 10:26 AM #

    But he will keep trying and we will continue to assist him in beating himself to death…lol

    Like

  17. Bernard Codrington. July 11, 2017 at 11:00 AM #

    @ Simple Simon at 9:35 PM

    “Justice delayed is Justice denied”. Congratulations .You got that one right.

    Like

  18. Well Well & Consequences Observing Blogger July 12, 2017 at 5:48 AM #

    Leroy Parris should be locked up for fraud, he still can be.

    800 million dollars of taxpayer’s money to underwrite the CLICO fraud.

    how much more damage to the people woukd Parris and Thompson had done, if Thompson had not been taken out of the equation.

    https://www.barbadostoday.bb/2017/07/11/not-out-fault/

    And of course it’s never Fruendel and Sinckler’s fault.

    Like

  19. Well Well & Consequences Observing Blogger July 12, 2017 at 6:18 AM #

    Because Fruendel and Sinckler have no powers of parliament and cannot call up the chief justice or have nuisance, useless Adriel Nitwit Dimwit Jackass have the chief justice pressure the greedy judicial managers, or master of documents or whichever idiot is holding up closure of the CLICO matter.

    Like

  20. Well Well & Consequences Observing Blogger July 12, 2017 at 8:02 PM #

    Carson….Someone posted to Facebook just now, David Simmons’ 2016 confession of corruption in Barbados, it came straight from the mouth of one who should know, directly corrupted by your masters the Kutappa-Harris clan as he was, he just could not keep silent anymore, he is however, lying about not having proof of corruption.

    The strange thing is, it’s an interview he gave to barbadostoday, wah happen, none of you can sleep at night anymore or what, guilty conscience…

    ….all that nasty stuff yall did to your own people for bribes, trips, luxury cars, abortion pills, viagra and cialis will fester inside you, bubble up and kill most of you, you know.

    I am sure he also has proof of your corruption with your masters….he just needs a little nudge to tell all.

    Finally…..a start…lol

    “Democrat files first articles of impeachment against Donald Trump

    Mr Trump ‘has acted in a manner … subversive of constitutional government,’ Mr Sherman writes.”

    Like

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