Thursday 24 August 2017
Saturday 19 August 2017
Click here for more. Donoghue v. Culligan ( 2006) Supreme Court of Canada... In one judgement by Lord Diplock, He acknowledged the power of intention in action. Lord Diplock said: '[N]o distinction is to be drawn in English law between the state of mind ofone who does an act because he desires it to produce a particular evil consequence, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act. Regina v Hyam [1975] AC 55." He further stated In Lemon that is; 'It is by now well-settled law that both states of mind constitute "intention" in the sense in which that expression is used in the definition of a crime whether at common law or in a statute. Any doubts on this matter were finally laid to rest by the decision of this House in Regina v Hyam [1975] AC 55." This human intention is the subject of the entire law. Various changes to english society as well as the socio-legal environment due to the phenomenon of reverse-colonialism and the pre-existing multi-cultural milieu as a result. It is the celebration of tradition in the application of English culture in maintaining and applying the good law at all costs. It was a positive observation by Lord Diplock in terms of growth and the benefit of good law for all subjects and citizens, regardless of race in the power of the Brit Milah. It is an equation; a worship that brings an atmosphere. The entire society and every street, tunnel, park and road is the Lord's House. It feels like Eden. It is to feel like Eden. Mechanized labor and automation helps to make it go swimmingly. But, you must give what is saved in automation and in loss prevention to the people that they will enjoy the Lord's House and you will see buoyancy.
Donoghue v. Culligan ( 2006) Supreme Court of Canada...
The case of Mustapha v Culligan (Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, 2008 SCC 27)
is an excellent encapsulation of tort law and tort principles in the Canadian legal context.
The story in the Mustapha case is not unlike the founding and seminal tort case Donoghue v. Stevenson [1932]UKHL 100. How have we progressed since then, if at all, and have there been notable changes in the law? The plaintiff in Donoghue had a successful result when she sued a ginger beer bottling company owned by a certain Mr. Stevenson for damages after it was discovered that the bottle of ginger beer she purchased contained a half-decomposed snail. Upon pouring the contents of the bottle into the glass, the snail came out and slowly floated to the bottom of the glass. Upon recognizing the unwelcome contents of her drink, she suffered a shock reaction and sued not only for the price of the bottle of ginger beer but for damages in compensation for the harm she suffered. It was established that the manufacturer owed her a duty of care, there was a breach of that duty, Mrs. Donoghue suffered harm as a result of that breach and, in keeping with modern legal parlance, there were no policy reasons to deny the claim so that she was granted an award of damages ( Anns v Merton, Anns-Cooper Test (Canada)).
Lord Atkin's speech from Donoghue v. Stevenson is quite helpful in understanding the very basis of tort and why the underlying principles of tort law are so profound and immutable: Lord Atkin said:
There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ...The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question . . . a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.
"A man has a Duty of Care to conduct himself in such a way as to avoid harm to others, where a reasonable man would have seen that such harm could occur". These principles are also found ironically in the teaching of Confucius and the Laozi. Is this not universal law?
Lords Thankerton and MacMillan supported Lord Atkin's opinion.
Mrs. Donoghue was a middle-aged woman of middle-class background in an era where multi-culturalism was not even heard of as a concept. But, following Lord Atkin's reasoning and the facts of Donoghue v. Stevenson, it seems that whether Mrs. Donoghue was a middle-aged white woman or a middle-aged Muslim man who made the claim following their shock reaction to the presence of a foreign animalian or insect-like object in the drink or bottle of water, the House of Lords would have ruled in accordance with the principles enshrined in Lord Atkin's speech and the various concurring judgments of the Law Lords. The world has not changed that much and clearly legal principles are colour blind. This is the grace of an enlightened society that has Judges and a court system which recognizes that legal principles are timeless and that seek to uphold an air of magnanimity while the diversity of humanity is subsumed by the generosity of the notion that God and his court is a court of equity. Only the poverty of our depraved humanity would lead us to judge the nervous stress reaction of a white middle-aged woman as being normal while the nervous reaction of a middle-aged Muslim man is judged or accepted by the court as being abnormal or predicated on a propensity to be unusually clean especially when there is little to distinguish the stimuli in either case. This would never happen in any enlightened generation whether the year is 1932 or the present era ( circa) 2006. Would it ( see the Product Liability and Consumer Protection Acts) ?
In one judgement by Lord Diplock, He acknowledged the power of intention in action. Lord Diplock said:
'[N]o distinction is to be drawn in English law between the state of mind ofone who does an act because he desires it to produce a particular evil consequence, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act. Regina v Hyam [1975] AC 55."
He further stated In Lemon that is;
'It is by now well-settled law that both states of mind constitute "intention" in the sense in which that expression is used in the definition of a crime whether at common law or in a statute. Any doubts on this matter were finally laid to rest by the decision of this House in Regina v Hyam [1975] AC 55."
This human intention is the subject of the entire law. Various changes to english society as well as the socio-legal environment due to the phenomenon of reverse-colonialism and the pre-existing multi-cultural milieu as a result. It is the celebration of tradition in the application of English culture in maintaining and applying the good law at all costs. It was a positive observation by Lord Diplock in terms of growth and the benefit of good law for all subjects and citizens, regardless of race in the power of the Brit Milah. It is an equation; a worship that brings an atmosphere. The entire society and every street, tunnel, park and road is the Lord's House. It feels like Eden. It is to feel like Eden. Mechanized labor and automation helps to make it go swimmingly. But, you must give what is saved in automation and in loss prevention to the people that they will enjoy the Lord's House and you will see buoyancy. Scarman also commented on this opportunity with similar observations. Reverse-colonialism is probably not the most apt phrase to describe the reality and impact of globalization on Western-Judeo Christian democracies. It could be described as an obvious, symbiotic and established movement and migration of peoples and goods. English culture is the ecumenical and equitable celebration of the differences in humanness with good law celebrating and protecting such differences, aspiring to the Heavens with freedom for all. England has former crown colonies of great consequence and impact since the 1600's with sons and daughters representing a unique hybridization of global culture in every corner of the earth and certainly in Britain. You can now buy top designer brands these days in abundance from three seasons ago as well as current offerings. these brands celebrate values and traditions with unique expressions. The unique hybridization, though, is sometimes the cornerstone of a confused cultural confidence which masks an ancestral insecurity which sits with many speaking of a hybridized identity called “genetic buffet” or Out of many people apparently. ”Genetic buffet” apparently means that you are really sure who you are or where your family comes from so you are “genetic buffet” or Out of many people with some physical features that indicate your genetic hybridization. It is celebrated in many hedonistic ways and the celebration is indicative,, of the mental slavery that some island nation's founding musical fathers wrote and sung about. It is almost an illness(the celebration) and at times boarders on self hatred or at least competitive communal devaluation and striving; “genetic buffet” or Out of many people or something like that. The mottoes vary. But, you do show thankfulness for what is yours and you do not covet. Social and family acceptance, however, might be based on the extent of your “genetic buffet” or Out of many people. It should be celebrated but it should not involve mutual abuse or devaluation that comes in many forms and may include your friend's bad foot saliva that he offers you or his neighbor in a glass of juice so that he leaves your home feeling higher than you in your pitiful egotistical crab-like imagination; disgusting. You tell your kids that it takes a village to raise a child and that they should study hard but then you say you hate your own after they graduate and attempt to enjoy their studies so why did you buy them any books? Things have not been as they were since 1962 so why look back to how it was instead of celebrating how it is and will be with the fastest mango producers etc.. in the world? You have value on your own. You could feel Puerto Rican any day of the week when you see you have value on your own and a sun for your country to orbit. It's crazy; the anger, covetousness and hatred toward one another. With a great deal of private prayer effort related to the highest rates of child sex and physical abuse per capita (see the sociological reports and CIA Fact Books) and public efforts at proffering real and obvious healing and real perfection in good intention toward family generational unity and preservation to alleviate the same; let us not forget the tribalism in political conflict between one party and another party but there is only one purse provided by the IMF in many of these former colonies; now countries. See the CIA fact books with respect to Trafficking in persons. It has probably a lot to do with national unity and not trying to beat anyone up in your country, city or family to build up your ego. That is civil war. If you do, it makes rooting for the national team during soccer or hockey matches quite hypocritical. Only cannibals do that; right? But how could this be? School ties are the beginning of unity and deliverance; not conflict or division since every school sings the national anthem. They should probably just remove the negative soul in the living experience no matter how angry Rosa Parks and her friends may get if you are happy and thankful for their efforts while the younger ones hammer her vehicle so she doesn't feel too authoritative ( but shouldn't people be happy as they hold an I-product and read their cooking, medical or sports therapy school grades as they can sit in the middle of the bus and dream of some day enjoying the front one day but only if no one needs the stroller space?) or plant a cross(ending all reliance on spiritual confusion by which one is mentally and spiritually enslaved); not argot. Who are these people who are afraid of someone having more social authority for a bottle of cologne bought on sale at Boots or Walgreens for $19.99? A statue of Christ in the harbor is an excellent sign of the real soul of this family oriented island.Some nations have the highest number of churches per capita in their regions with great benefit. White Jamaican Families(regardless of their light or midnight complexion) help their children, cousins and children's children since all the family that survives you is a great testimony of your special status as a White Jamaican. They work together will all Jamaicans to ensure there is no injustice in this world and that people are provided recompense if there is. It is humane redemption and nobody needs to be white or white Jamaican to play music or to be creative. Go to an art gallery or to any music or athletic hall of fame. You will find all kinds and colors of Jamaicans there. Helping other Jamaicans suffering injustice, your own family, your adopted and raised children or otherwise is the quintessential definition of being a white Jamaican; to help your family and this includes the children raised in your home with corn flakes, skates and soccer shoes. Cross-generational abuse is anathema to one's honor. If you suffered mistreatment, you ask for the strength to forgive so that you will not pass the mistreatment on unwittingly or subconsciously to another generation. Slavery did not end when the Cimaroons revolted and ran to the United States to be with George Washington and Alexander Hamilton who understood tyranny. It ended when the French, English or the U.S abolished it in their respective jurisdictions. The French were first. So, let us move on then. These experiences as some have recounted them on occasion are an aberration of the truth that certainly involves different groups and cultures living and working together for the greater good; some purely Indian, Chinese, European, Afro Latino, Afro Brazilian or African, many partly native or racially mixed. The majority of these islands and countries are mixed race with most people carrying four different quarters of genes. Any couple could give birth to a child with varying features within a particular Island's gene pool. It is still your child as you remember that grey-eyed or brown -eyed relative from two generations ago. No one has black eyes. In the end, everyone knows their ancestry in one sense or the other and chooses peace. As the popular motto says, Out of many people and cultures, there is now just one. This is not unlike other countries in the Americas including the U.S. But, clearly the family frying fish and chips at the local chippy these days is likely to be of Mediterranean, Arabic or Asian extract and descent. Who again is running the best “Perfect Fried Chicken” franchise in Islington on Black Stock Road? The branch in Battersea makes an excellent chicken sandwich. Never mind.
The truth is that as much as society and its complexion may change, our system of jurisprudence is founded on ancient, adynamic, unchanging principles which are older than Rome itself. If a Muslim can't come to Canada and get God's justice, then we should leave their poppy and oil fields alone. Our principles of Justice are timeless and by virtue of the oaths made by lawyers and Judges alike when they proceed, Justice is not fettered but lives and transmits the message that law is colour blind. It is colour blind. However, we are fallible and with every ethics course, we are reminded of our fallibility.
Sometimes, when we read judgments we may realise that we are not always colour blind with our apprehend-able biases appearing on the face of the judgment. Do we not apprehend them? We may need to create a course in fundamental justice. It is said in Latin Jurisprudentia est divinarum atque humanarum rerum notitia justi atque injusti scientia. The english translation of the preceding latin saying is as follows: Jurisprudence is knowledge of things sacred and human, a science of right and wrong. It is also said in Latin, Jus Naturale est Quod Apud Omnes Homines Eandem Habet Potentiam: that natural law has the same force among all people. It is also said in Latin, Justitia Firmatur Solium; that the throne is strengthened by justice. In Latin, it also says Justitia Nemini Neganda Est; that justice should be denied to no one. Last it says in Latin, Jus Respicit Aequitatem; that law is mindful of equity.
Certainly there are times when there are failures in judgment where some of these failures amount to bias or a lack of fairness in procedure. The judicial community works hard to avoid this. There are obviously those who do not believe that law or the legal process is colour blind and fear judicial bias based on race or other parameters. It is submitted that Mustapha v Culligan, playfully referred to as Donoghue v. Culligan provides an example when the ethno-centric realities of the case may have been ignored in the process of weighing and judging of the parties positions leading to ethnic biases in the assessment of the evidence, resulting in a harsh result such that it cannot be said justice was seen to be done between the parties. Ultimately, there was a particular result in judgment. But, what essentially is the failure in Donoghue v. Culligan? The failure is that the court has an inherent jurisdiction to ensure that the principles of equity, justice and fairness are upheld by the court. No legal system should fall victim to anything that is less than a vicar's or Cardinal's justice. This is for the dark ages when some body could ask you to recant of your beliefs at the threat of death or for countries where they stone you for teaching young girls how to read and write.
Clearly the scintilla of the Mustapha ( Donoghue v. Culligan) case fits squarely within every parameter of the seminal case Donoghue v. Stevenson. Only the final result in Mustapha ( Donoghue v. Culligan) on appeal to the Supreme Court of Canada is at odds with the principles of Donoghue v. Stevenson. But why?
Mr. Mustapha is a Muslim man reaching middle age with a wife and family living in a middle-class home setting. He buys bottled spring water on a regular basis which comes in large multi-litre jugs for a water cooler in his kitchen. One day, the water company named Culligan arrives at his home with a water cooler bottle that contains non-decomposed house flies floating inside the bottle. Mr. Mustapha installs the bottle in the water cooler but he does not see the flies right away. Shortly thereafter, he returns to the kitchen to see that his wife has fainted at the sight of the flies floating in the water cooler bottle. She has had an expected shock reaction akin to the reaction suffered by Mrs. Donoghue. Mr. Mustapha has his own stress reaction also akin to the reaction of Mrs. Donoghue. If Mr. Mustapha was a white grandmother from Manitoba, who would have questioned the normalcy of his reaction to the sight of un-decomposed flies floating in his water cooler bottle?
Following certain reasonable man tests, it was argued by the court that Mr. Mustapha's reaction was not to be expected within the range of normal reactions of the average Canadian man in his age group. But, his statement of claim is not a class-action suit where he has claimed on behalf of every Canadian man in his age group. What did Mr. Mustapha suffer? What did Mrs. Donoghue Suffer? A subjectively balanced objective test would be appropriate. It would be equitable where we would ask what would have been the reaction of the reasonably minded person with the same background as the claimant to the tortious wrong occasioned upon them by the manufacturer. The question is what did the litigant suffer? He, Mr. Mustapha, is the one who suffered the wrong. Why should he lose his claim for having a reaction within the calculable range of possible human reactions that fit within our God -given humanity? Quite possibly, quite likely on a balance of probabilities, it is 50% likely that half the men in Canada in Mr. Mustapha's age group would have had a shock reaction of some kind. The strength and severity of the reaction should only affect the quantum of damages. Any shock reaction suffered by the claimant, no matter how diminimus, should lead to an award of damages with Donoghue and Stevenson being the foundational judgment for Mr. Mustapha's award. Therefore, it can be easily said that, like Mustapha, a person of normal fortitude would have had a shock reaction to the sight of flies in the water cooler bottle. Arsenic should not be in my 'Hines" Ketchup nor in my child's "Gurber" baby food let alone flies in my spring water bottle.
The medical opinion is the true issue here. The psychologist who examined Mustapha said that Mustapha was unusually clean and that this propensity was a facet of his Muslim faith and upbringing. This propensity caused his severe stress reaction to the sight of flies in the water cooler bottle, the psychologist said. This raises severe ethno-cultural issues. Clearly the middle-aged woman from Manitoba would have had a similar stress reaction as that suffered by Mustapha. At least 50% of the reasonably minded middled aged white men in Canada regardless of religion would have had a similar stress reaction as that suffered by Mr. Mustapha. We are splicing hairs with a razor to argue that his reaction was less than normal. How should Mr. Mustapha have reacted to such a horrible sight of dead insects floating in his cooler bottle? A numb reaction of indifference would have been irrational. Would it not? Shock, no matter how slight, is certainly normal when one sees flies floating in his water cooler especially when the bottle came directly from the Water bottling plant. A slight shock reaction was enough to substantiate some award of damages in Mustapha's favor but to reduce his reaction with the argument that it was abnormal in a psychological assessment or in a legal objective test is inhumane and denies Mr. Mustapha of his humanity and the realities of ethnic difference in our humanity. Diversity, not homogeneity, is the reality of any society, pre and post-modern, and the just laws of every society will absorb this beautiful human truth. This is the legacy of Rome and the laws passed down by this progenitor of every Judeo-Christian Western democracy; that law is colour blind and is free from ethnic bias in its final and just result. Is this not the imprint that we find in the common law?
It is said that expert opinions usually carry biases of some kind; biases that favor the legal team who may have consulted with the expert to obtain the opinion or the independent biases of the alleged expert. Courts are aware of this phenomenon of bias in expert opinions (see the case Regina v. More [ 1963] Manitoba Court of Appeal-see also R. V Turpin, 1989 S.C.C.). As a result, Judges are entitled to seek their own expert opinions when bias can be apprehended in the opinion of the expert ( see rule 52.03 of the Ontario Rules of Civil Procedure-similar court rules are found in other common law jurisdictions). In the Mustapha case, justice in the final outcome may have been unfettered by such an independent expert being appointed by the court.
A Muslim is entitled to be just as clean as his Canadian white male or female neighbour. They have the same faith as Christians and Jews since Mohammed commanded them to be followers of the people of the book( people of the book- Jews and Christians;Muslims are sons of Ishmael who is a son of Abraham and God gave Abraham one message). His faith should not make him unusually clean when many male White Christians would have had a similar and rather reasonable stress reaction akin to that suffered by Mustapha. This is in the range of the reasonableness of their Muslim, Christian or atheistic humanity.
Blackstone once commented on how law would become more instrumental over time in its ability to shape and structure the movements of society. This phenomena was also commented on by Habermas as the Habermasian Iron cage. Law was also instrumental in Rome. However, no matter how instrumental law may become, we need justice. This justice must be maintained by the construction of the court that will allow for flexibility within the office of the judiciary so that justice will be done in every matter. This is the legacy of Donoghue v. Culligan.
By Warren Augustine Lyon, B.A.(Hons.), LL.B(Hons.)
Copyright: (Warren Augustine Lyon (November 16th, 2010))
Toronto, Canada
www.bukisa.com is under construction and the version of the essay appearing on that site was corrupted by sources unknown-please be advised.
The case of Mustapha v Culligan (Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, 2008 SCC 27)
is an excellent encapsulation of tort law and tort principles in the Canadian legal context.
The story in the Mustapha case is not unlike the founding and seminal tort case Donoghue v. Stevenson [1932]UKHL 100. How have we progressed since then, if at all, and have there been notable changes in the law? The plaintiff in Donoghue had a successful result when she sued a ginger beer bottling company owned by a certain Mr. Stevenson for damages after it was discovered that the bottle of ginger beer she purchased contained a half-decomposed snail. Upon pouring the contents of the bottle into the glass, the snail came out and slowly floated to the bottom of the glass. Upon recognizing the unwelcome contents of her drink, she suffered a shock reaction and sued not only for the price of the bottle of ginger beer but for damages in compensation for the harm she suffered. It was established that the manufacturer owed her a duty of care, there was a breach of that duty, Mrs. Donoghue suffered harm as a result of that breach and, in keeping with modern legal parlance, there were no policy reasons to deny the claim so that she was granted an award of damages ( Anns v Merton, Anns-Cooper Test (Canada)).
Lord Atkin's speech from Donoghue v. Stevenson is quite helpful in understanding the very basis of tort and why the underlying principles of tort law are so profound and immutable: Lord Atkin said:
There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ...The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question . . . a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.
"A man has a Duty of Care to conduct himself in such a way as to avoid harm to others, where a reasonable man would have seen that such harm could occur". These principles are also found ironically in the teaching of Confucius and the Laozi. Is this not universal law?
Lords Thankerton and MacMillan supported Lord Atkin's opinion.
Mrs. Donoghue was a middle-aged woman of middle-class background in an era where multi-culturalism was not even heard of as a concept. But, following Lord Atkin's reasoning and the facts of Donoghue v. Stevenson, it seems that whether Mrs. Donoghue was a middle-aged white woman or a middle-aged Muslim man who made the claim following their shock reaction to the presence of a foreign animalian or insect-like object in the drink or bottle of water, the House of Lords would have ruled in accordance with the principles enshrined in Lord Atkin's speech and the various concurring judgments of the Law Lords. The world has not changed that much and clearly legal principles are colour blind. This is the grace of an enlightened society that has Judges and a court system which recognizes that legal principles are timeless and that seek to uphold an air of magnanimity while the diversity of humanity is subsumed by the generosity of the notion that God and his court is a court of equity. Only the poverty of our depraved humanity would lead us to judge the nervous stress reaction of a white middle-aged woman as being normal while the nervous reaction of a middle-aged Muslim man is judged or accepted by the court as being abnormal or predicated on a propensity to be unusually clean especially when there is little to distinguish the stimuli in either case. This would never happen in any enlightened generation whether the year is 1932 or the present era ( circa) 2006. Would it ( see the Product Liability and Consumer Protection Acts) ?
In one judgement by Lord Diplock, He acknowledged the power of intention in action. Lord Diplock said:
'[N]o distinction is to be drawn in English law between the state of mind ofone who does an act because he desires it to produce a particular evil consequence, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act. Regina v Hyam [1975] AC 55."
He further stated In Lemon that is;
'It is by now well-settled law that both states of mind constitute "intention" in the sense in which that expression is used in the definition of a crime whether at common law or in a statute. Any doubts on this matter were finally laid to rest by the decision of this House in Regina v Hyam [1975] AC 55."
This human intention is the subject of the entire law. Various changes to english society as well as the socio-legal environment due to the phenomenon of reverse-colonialism and the pre-existing multi-cultural milieu as a result. It is the celebration of tradition in the application of English culture in maintaining and applying the good law at all costs. It was a positive observation by Lord Diplock in terms of growth and the benefit of good law for all subjects and citizens, regardless of race in the power of the Brit Milah. It is an equation; a worship that brings an atmosphere. The entire society and every street, tunnel, park and road is the Lord's House. It feels like Eden. It is to feel like Eden. Mechanized labor and automation helps to make it go swimmingly. But, you must give what is saved in automation and in loss prevention to the people that they will enjoy the Lord's House and you will see buoyancy. Scarman also commented on this opportunity with similar observations. Reverse-colonialism is probably not the most apt phrase to describe the reality and impact of globalization on Western-Judeo Christian democracies. It could be described as an obvious, symbiotic and established movement and migration of peoples and goods. English culture is the ecumenical and equitable celebration of the differences in humanness with good law celebrating and protecting such differences, aspiring to the Heavens with freedom for all. England has former crown colonies of great consequence and impact since the 1600's with sons and daughters representing a unique hybridization of global culture in every corner of the earth and certainly in Britain. You can now buy top designer brands these days in abundance from three seasons ago as well as current offerings. these brands celebrate values and traditions with unique expressions. The unique hybridization, though, is sometimes the cornerstone of a confused cultural confidence which masks an ancestral insecurity which sits with many speaking of a hybridized identity called “genetic buffet” or Out of many people apparently. ”Genetic buffet” apparently means that you are really sure who you are or where your family comes from so you are “genetic buffet” or Out of many people with some physical features that indicate your genetic hybridization. It is celebrated in many hedonistic ways and the celebration is indicative,, of the mental slavery that some island nation's founding musical fathers wrote and sung about. It is almost an illness(the celebration) and at times boarders on self hatred or at least competitive communal devaluation and striving; “genetic buffet” or Out of many people or something like that. The mottoes vary. But, you do show thankfulness for what is yours and you do not covet. Social and family acceptance, however, might be based on the extent of your “genetic buffet” or Out of many people. It should be celebrated but it should not involve mutual abuse or devaluation that comes in many forms and may include your friend's bad foot saliva that he offers you or his neighbor in a glass of juice so that he leaves your home feeling higher than you in your pitiful egotistical crab-like imagination; disgusting. You tell your kids that it takes a village to raise a child and that they should study hard but then you say you hate your own after they graduate and attempt to enjoy their studies so why did you buy them any books? Things have not been as they were since 1962 so why look back to how it was instead of celebrating how it is and will be with the fastest mango producers etc.. in the world? You have value on your own. You could feel Puerto Rican any day of the week when you see you have value on your own and a sun for your country to orbit. It's crazy; the anger, covetousness and hatred toward one another. With a great deal of private prayer effort related to the highest rates of child sex and physical abuse per capita (see the sociological reports and CIA Fact Books) and public efforts at proffering real and obvious healing and real perfection in good intention toward family generational unity and preservation to alleviate the same; let us not forget the tribalism in political conflict between one party and another party but there is only one purse provided by the IMF in many of these former colonies; now countries. See the CIA fact books with respect to Trafficking in persons. It has probably a lot to do with national unity and not trying to beat anyone up in your country, city or family to build up your ego. That is civil war. If you do, it makes rooting for the national team during soccer or hockey matches quite hypocritical. Only cannibals do that; right? But how could this be? School ties are the beginning of unity and deliverance; not conflict or division since every school sings the national anthem. They should probably just remove the negative soul in the living experience no matter how angry Rosa Parks and her friends may get if you are happy and thankful for their efforts while the younger ones hammer her vehicle so she doesn't feel too authoritative ( but shouldn't people be happy as they hold an I-product and read their cooking, medical or sports therapy school grades as they can sit in the middle of the bus and dream of some day enjoying the front one day but only if no one needs the stroller space?) or plant a cross(ending all reliance on spiritual confusion by which one is mentally and spiritually enslaved); not argot. Who are these people who are afraid of someone having more social authority for a bottle of cologne bought on sale at Boots or Walgreens for $19.99? A statue of Christ in the harbor is an excellent sign of the real soul of this family oriented island.Some nations have the highest number of churches per capita in their regions with great benefit. White Jamaican Families(regardless of their light or midnight complexion) help their children, cousins and children's children since all the family that survives you is a great testimony of your special status as a White Jamaican. They work together will all Jamaicans to ensure there is no injustice in this world and that people are provided recompense if there is. It is humane redemption and nobody needs to be white or white Jamaican to play music or to be creative. Go to an art gallery or to any music or athletic hall of fame. You will find all kinds and colors of Jamaicans there. Helping other Jamaicans suffering injustice, your own family, your adopted and raised children or otherwise is the quintessential definition of being a white Jamaican; to help your family and this includes the children raised in your home with corn flakes, skates and soccer shoes. Cross-generational abuse is anathema to one's honor. If you suffered mistreatment, you ask for the strength to forgive so that you will not pass the mistreatment on unwittingly or subconsciously to another generation. Slavery did not end when the Cimaroons revolted and ran to the United States to be with George Washington and Alexander Hamilton who understood tyranny. It ended when the French, English or the U.S abolished it in their respective jurisdictions. The French were first. So, let us move on then. These experiences as some have recounted them on occasion are an aberration of the truth that certainly involves different groups and cultures living and working together for the greater good; some purely Indian, Chinese, European, Afro Latino, Afro Brazilian or African, many partly native or racially mixed. The majority of these islands and countries are mixed race with most people carrying four different quarters of genes. Any couple could give birth to a child with varying features within a particular Island's gene pool. It is still your child as you remember that grey-eyed or brown -eyed relative from two generations ago. No one has black eyes. In the end, everyone knows their ancestry in one sense or the other and chooses peace. As the popular motto says, Out of many people and cultures, there is now just one. This is not unlike other countries in the Americas including the U.S. But, clearly the family frying fish and chips at the local chippy these days is likely to be of Mediterranean, Arabic or Asian extract and descent. Who again is running the best “Perfect Fried Chicken” franchise in Islington on Black Stock Road? The branch in Battersea makes an excellent chicken sandwich. Never mind.
The truth is that as much as society and its complexion may change, our system of jurisprudence is founded on ancient, adynamic, unchanging principles which are older than Rome itself. If a Muslim can't come to Canada and get God's justice, then we should leave their poppy and oil fields alone. Our principles of Justice are timeless and by virtue of the oaths made by lawyers and Judges alike when they proceed, Justice is not fettered but lives and transmits the message that law is colour blind. It is colour blind. However, we are fallible and with every ethics course, we are reminded of our fallibility.
Sometimes, when we read judgments we may realise that we are not always colour blind with our apprehend-able biases appearing on the face of the judgment. Do we not apprehend them? We may need to create a course in fundamental justice. It is said in Latin Jurisprudentia est divinarum atque humanarum rerum notitia justi atque injusti scientia. The english translation of the preceding latin saying is as follows: Jurisprudence is knowledge of things sacred and human, a science of right and wrong. It is also said in Latin, Jus Naturale est Quod Apud Omnes Homines Eandem Habet Potentiam: that natural law has the same force among all people. It is also said in Latin, Justitia Firmatur Solium; that the throne is strengthened by justice. In Latin, it also says Justitia Nemini Neganda Est; that justice should be denied to no one. Last it says in Latin, Jus Respicit Aequitatem; that law is mindful of equity.
Certainly there are times when there are failures in judgment where some of these failures amount to bias or a lack of fairness in procedure. The judicial community works hard to avoid this. There are obviously those who do not believe that law or the legal process is colour blind and fear judicial bias based on race or other parameters. It is submitted that Mustapha v Culligan, playfully referred to as Donoghue v. Culligan provides an example when the ethno-centric realities of the case may have been ignored in the process of weighing and judging of the parties positions leading to ethnic biases in the assessment of the evidence, resulting in a harsh result such that it cannot be said justice was seen to be done between the parties. Ultimately, there was a particular result in judgment. But, what essentially is the failure in Donoghue v. Culligan? The failure is that the court has an inherent jurisdiction to ensure that the principles of equity, justice and fairness are upheld by the court. No legal system should fall victim to anything that is less than a vicar's or Cardinal's justice. This is for the dark ages when some body could ask you to recant of your beliefs at the threat of death or for countries where they stone you for teaching young girls how to read and write.
Clearly the scintilla of the Mustapha ( Donoghue v. Culligan) case fits squarely within every parameter of the seminal case Donoghue v. Stevenson. Only the final result in Mustapha ( Donoghue v. Culligan) on appeal to the Supreme Court of Canada is at odds with the principles of Donoghue v. Stevenson. But why?
Mr. Mustapha is a Muslim man reaching middle age with a wife and family living in a middle-class home setting. He buys bottled spring water on a regular basis which comes in large multi-litre jugs for a water cooler in his kitchen. One day, the water company named Culligan arrives at his home with a water cooler bottle that contains non-decomposed house flies floating inside the bottle. Mr. Mustapha installs the bottle in the water cooler but he does not see the flies right away. Shortly thereafter, he returns to the kitchen to see that his wife has fainted at the sight of the flies floating in the water cooler bottle. She has had an expected shock reaction akin to the reaction suffered by Mrs. Donoghue. Mr. Mustapha has his own stress reaction also akin to the reaction of Mrs. Donoghue. If Mr. Mustapha was a white grandmother from Manitoba, who would have questioned the normalcy of his reaction to the sight of un-decomposed flies floating in his water cooler bottle?
Following certain reasonable man tests, it was argued by the court that Mr. Mustapha's reaction was not to be expected within the range of normal reactions of the average Canadian man in his age group. But, his statement of claim is not a class-action suit where he has claimed on behalf of every Canadian man in his age group. What did Mr. Mustapha suffer? What did Mrs. Donoghue Suffer? A subjectively balanced objective test would be appropriate. It would be equitable where we would ask what would have been the reaction of the reasonably minded person with the same background as the claimant to the tortious wrong occasioned upon them by the manufacturer. The question is what did the litigant suffer? He, Mr. Mustapha, is the one who suffered the wrong. Why should he lose his claim for having a reaction within the calculable range of possible human reactions that fit within our God -given humanity? Quite possibly, quite likely on a balance of probabilities, it is 50% likely that half the men in Canada in Mr. Mustapha's age group would have had a shock reaction of some kind. The strength and severity of the reaction should only affect the quantum of damages. Any shock reaction suffered by the claimant, no matter how diminimus, should lead to an award of damages with Donoghue and Stevenson being the foundational judgment for Mr. Mustapha's award. Therefore, it can be easily said that, like Mustapha, a person of normal fortitude would have had a shock reaction to the sight of flies in the water cooler bottle. Arsenic should not be in my 'Hines" Ketchup nor in my child's "Gurber" baby food let alone flies in my spring water bottle.
The medical opinion is the true issue here. The psychologist who examined Mustapha said that Mustapha was unusually clean and that this propensity was a facet of his Muslim faith and upbringing. This propensity caused his severe stress reaction to the sight of flies in the water cooler bottle, the psychologist said. This raises severe ethno-cultural issues. Clearly the middle-aged woman from Manitoba would have had a similar stress reaction as that suffered by Mustapha. At least 50% of the reasonably minded middled aged white men in Canada regardless of religion would have had a similar stress reaction as that suffered by Mr. Mustapha. We are splicing hairs with a razor to argue that his reaction was less than normal. How should Mr. Mustapha have reacted to such a horrible sight of dead insects floating in his cooler bottle? A numb reaction of indifference would have been irrational. Would it not? Shock, no matter how slight, is certainly normal when one sees flies floating in his water cooler especially when the bottle came directly from the Water bottling plant. A slight shock reaction was enough to substantiate some award of damages in Mustapha's favor but to reduce his reaction with the argument that it was abnormal in a psychological assessment or in a legal objective test is inhumane and denies Mr. Mustapha of his humanity and the realities of ethnic difference in our humanity. Diversity, not homogeneity, is the reality of any society, pre and post-modern, and the just laws of every society will absorb this beautiful human truth. This is the legacy of Rome and the laws passed down by this progenitor of every Judeo-Christian Western democracy; that law is colour blind and is free from ethnic bias in its final and just result. Is this not the imprint that we find in the common law?
It is said that expert opinions usually carry biases of some kind; biases that favor the legal team who may have consulted with the expert to obtain the opinion or the independent biases of the alleged expert. Courts are aware of this phenomenon of bias in expert opinions (see the case Regina v. More [ 1963] Manitoba Court of Appeal-see also R. V Turpin, 1989 S.C.C.). As a result, Judges are entitled to seek their own expert opinions when bias can be apprehended in the opinion of the expert ( see rule 52.03 of the Ontario Rules of Civil Procedure-similar court rules are found in other common law jurisdictions). In the Mustapha case, justice in the final outcome may have been unfettered by such an independent expert being appointed by the court.
A Muslim is entitled to be just as clean as his Canadian white male or female neighbour. They have the same faith as Christians and Jews since Mohammed commanded them to be followers of the people of the book( people of the book- Jews and Christians;Muslims are sons of Ishmael who is a son of Abraham and God gave Abraham one message). His faith should not make him unusually clean when many male White Christians would have had a similar and rather reasonable stress reaction akin to that suffered by Mustapha. This is in the range of the reasonableness of their Muslim, Christian or atheistic humanity.
Blackstone once commented on how law would become more instrumental over time in its ability to shape and structure the movements of society. This phenomena was also commented on by Habermas as the Habermasian Iron cage. Law was also instrumental in Rome. However, no matter how instrumental law may become, we need justice. This justice must be maintained by the construction of the court that will allow for flexibility within the office of the judiciary so that justice will be done in every matter. This is the legacy of Donoghue v. Culligan.
By Warren Augustine Lyon, B.A.(Hons.), LL.B(Hons.)
Copyright: (Warren Augustine Lyon (November 16th, 2010))
Toronto, Canada
www.bukisa.com is under construction and the version of the essay appearing on that site was corrupted by sources unknown-please be advised.
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