The Jeff Cumberbatch Column – Dancing with Danger
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.