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The Bard de la Mer (Du Parcq v Pedersen; Pedersen v Vidaloca) [2005] 3 C. of Sh. 1

Fact Pattern

"THE BARD DE LA MER" (DU PARCQ v PEDERSEN; PEDERSEN v VIDALOCA)

Matter No.…………3/2005
Hearing Date………24/3/2005

Statement of Agreed Facts

Three close friends went on a camping holiday to Bleak Island, a secluded maritime reserve. They were Gabriel Pedersen, Jean du Parcq and Chris Vidaloca. After a couple of leisurely beers, Gabriel and Jean went sailing in Gabriel’s small sailing boat, ‘The Bard de la Mer’, while Chris lay drowsily in the sun.

Out to sea, Gabriel, who was an experienced sailor, continued to drink heavily, much to Jean’s alarm. Within a couple of hours, Gabriel had become extremely inebriated, and Jean seriously concerned. Jean turned the boat toward shore, but an argument broke out, in the course of which Gabriel struck Jean violently. She fell overboard, whereupon Gabriel collapsed insensibly in the bottom of the boat. Jean, bleeding and unable to reach the boat, began to signal frantically to the shore for help.

The boat and Jean were both now easily visible from shore. Chris, who had stayed ashore because of a fear of sharks, saw the drowning woman and the bloom of blood, but she did nothing. Fortunately for Jean, another boat happened by and rescued her from death. Unhappily, the rescue came too late to save her from permanent injury.

As a result of the lengthy deprivation of oxygen, Jean suffered irreparable brain damage and she now requires round-the-clock institutional care. Both the fall in the water and the delay in the rescue are causally related to these injuries.

Procedural History

On trial for criminal assault brought under a private prosecution, the Court held that, owing to his intoxication, Gabriel was not responsible for his actions.1 In a parallel action for civil negligence, Gabriel’s maritime insurance company sought to join Chris as second defendant, but the Court determined that neither the common law nor the Civil Code of Québec imposes a duty of rescue in these circumstances.2 The plaintiff succeeded against Gabriel and damages in the amount of $2.5 million were awarded.

An appeal from each of these judgments was brought to this court and by special leave consolidated in a single record. The prosecutor/respondent, Jean du Parcq (by her guardians), seeks

    1) a declaration from the Court of Shakespeare holding Gabriel responsible for the assault on Jean du Parcq
    2) a judgment affirming the trial judge’s determination of civil liability

The defendant/applicant, Gabriel Pedersen (subsumed by HR&G Insurance Group), argues

    3) that the defendant was not legally responsible for his actions
    4) that Chris Vidaloca ought to be held jointly and severally liable for breaching a duty of care to the plaintiff

Rules of Court

The Court of Shakespeare adheres, mutatis mutandis, to the procedure of a final appellate court under the Rules of the McGill Moot Court.3 Written briefs will be 12-15 pages in length in the form indicated in the Rules, exchanged no later than Tuesday, March 1, 2005.

Oral argument will be presented to the Full Court for judgment, Thursday, March 24, 2005. Each side will have up to 30 minutes to present their case and each counsel must speak for at least 10 minutes. Five minutes rebuttal time may be reserved.

The Court’s sole Institutes, Codex, and Digest, is comprised by the works of William Shakespeare.

In accepting jurisdiction to hear the current case, the Court deems the following to be of greatest importance and relevance for the case before it: King Lear, Hamlet, Measure for Measure, and The Winter’s Tale. The Court will consider arguments based on other of Shakespeare works only where a compelling argument can be made for their special pertinence. The Court also notes the existence of precedent from within this jurisdiction bearing on the question of the legal and constitutional interpretation of the laws of Shakespeare.4

Literature on the nature and theories of legal interpretation; on the origin and reception of law; and on the particular interpretations of Shakespearian texts or the canon as whole, are relevant in determining how the Court is to understand and apply the laws of Shakespeare. They may be of assistance to the court but they cannot supercede its primary textual duty. Legal material from other jurisdictions may help to inform your understanding of the issues but are neither binding nor influential in this jurisdiction.

Registrar of the Court of Shakespeare

Mooting Teams

The prosecutor/respondent, Jean du Parcq (by her guardians), seeks

  • a declaration from the Court of Shakespeare holding Gabriel responsible for the assault on Jean du Parcq
  • a judgment affirming the trial judge’s determination of civil liability

1. Amanda Cockburn and Christine Stecura
3. Matt Frassica and Erika Kurt
5. Laura Moth and Sidney Thompson

The defendant/applicant, Gabriel Pedersen (subsumed by HR&G Insurance Group), argues

  • that the defendant was not legally responsible for his actions
  • that Chris Vidaloca ought to be held jointly and severally liable for breaching a duty of care to the plaintiff

2. Emma Blanchard and Hilary Elkins
4. Myra Wright and Sylvia Rich
6. Jason MacLean and Lisa Stokes-King

1. R v. Daviault [1994] 3 S.C.R. 63 (Supreme Court of Canada); R v. Robinson [1996], 1 S.C.R. 683 (Supreme Court of Canada).
2. See Osterlind v. Hill, (1928) 263 Mass. 73, 160 NE 301 (Supreme Court of Massachussetts); Horsley v. MacLaren (‘The Ogopogo’), [1972] S.C.R. 441 (Supreme Court of Canada); Civil Code of Québec, Article 1457. See also Tony Honoré, ‘Are Omissions Less Culpable?’ in Peter Cane and Jane Stapleton, eds., Essays for Patrick Atiiyah (Oxford, 1991), 31-52; Farwell v Keaton, (1976) 396 Mich. 281; 240 N.W.2d 217 (Supreme Court of Michigan).
3. Rules of Practice of the Moot Court at the Law Faculty of McGill University, as modified in oral advice to the pleaders at trial.
4. In Re Attorney General for Canada, ex parte Heinrich, (2003) 1 C. Sh. 1; Attorney General for Canada v. Pete Pears, Ben Britten & Ors. (2003) 2 C. Sh. 1.