The Last Word from your newsletter—issue #39 (Animal Law—The Snail in a Bottle Case) brought to mind a painful and embarrassing incident from very early in my career, that I wanted to share.

Without going into great detail, I represented a party whose brother held a sizable amount of funds in trust for him in his (the brother’s) bank account. The brother took ill and, on his death bed, his “girlfriend” coerced him to sign a power of attorney giving her access to his personal property. She immediately went to his bank and liquidated his account (including his brother’s – my client’s – funds) before he passed away, based on the “power of attorney”, then absconded.

My client brought an action against the bank – there were obvious and egregious errors on the face of the power of attorney document which should never have been accepted by the bank.

The bank brought a motion to dismiss the claim, arguing that there was no contract between the bank and my client, therefore they owed nothing to my client – if anyone had a claim, it should have been the deceased.

It seemed to me that this was a very obvious Donoghue v Stevenson situation (also a matter raised in your Last Word recently) – this was not a matter of contract, but of negligence on the part of the bank.

However, as a relatively “green” lawyer, I didn’t argue this point as strongly as I might have – I made reference to the “snail in the ginger beer case” without going into great detail (or even naming the case – I just thought that everyone – including the judge – would be familiar with this foundational case of tort law, and naively assumed that the judge would (of course) pick up on my reference and obviously understand my argument. Turned out that the judge was not familiar with it – or at least was not thinking of it that day. I lost the motion.

Justice Brown’s statement that “every judge needs to be educated on every case he/she hears” rings true today. That incident was a great learning experience for me – I’ve since realized that I must assume nothing and take the bench by the hand and spell out my argument in painstaking detail, even if this is found to be unnecessary or condescending.

I’m reminded of something one of my greatly experienced barrister lecturers on the Bar Course in England told us years ago – “You must make your argument so easily understandable that any fool – even a judge – can follow and comprehend it.”



Thank you: Peter Hamiwka, peter.hamiwka@rogers.com.