She swallowed the dog to catch the cat. She swallowed the cat to catch the bird. She swallowed the bird to catch the spider; that wriggled and jiggled and tickled inside her,
She swallowed the spider to catch the fly, I don't know why she swallowed the fly.
There is nothing more warming than children's nursery rhymes. I chuckled when the risk manager in me imagined the court cases if all these animals including the old woman's estate actually sought legal representation and took action for damages incurred. The poor fly, the ultimate victim.
Cumulative tales like this have enriched our childhood and in many ways have "enriched" our risk management world. I'd wager that there are few risk managers or adjusters that do not have at least one injury claim with proximate causation that sings like this nursery rhyme.
Injuries like this can be seen as ridiculously unforeseeable to some and yet to others not necessarily. We often find ourselves confused as to what is considered reasonable and as to what is actually foreseeable.
Fly injuries bring to mind the case of Mustapha v. Culligan of Canada Ltd. Mustapha sought damages from Culligan after seeing dead flies in an unopened bottle of Culligan drinking water.
Mustapha was thereafter diagnosed with depression and obsessive thoughts. The judge found that the injury was foreseeable and found Culligan liable.
Culligan appealed and the court found that it was not "reasonably foreseeable" that a person of normal sensibility would be likely to suffer psychiatric harm.
Much has been written on the notion of reasonable foreseeability in negligence actions. When I read words like "foreseeable," "possible," "probable," "reasonable," "likely," and my favorite, "normal," I cringe.
One reason is simply the linguistic inferences. What is considered "normal"? How probable does an injury need to be in order to be considered "reasonably foreseeable"?
Is a "reasonably foreseeable" injury one whose occurrence is probable or merely possible? And if an injury has actually occurred, is it automatically now considered "possible" and hence foreseeable from that day forward? Almost everything is foreseeable with the benefit of hindsight.
My second reason for cringing is that we know that risks originate from obvious and sometimes not very obvious sources. But the law endorses the management of situations that would "foreseeably" cause harm.
This foreseeability, in essence, becomes the primary impetus for taking action in managing such risks. However, if our understanding of legal foreseeability leans on past outcomes, it is in essence a hindsight practice.
Foresight to me is forward, alternative and innovative thinking. The era for new risk management falls within the era of unimaginable acts of terror, economic collapses and unfathomable fraud.
There is no point in practicing old versions of risk management that simply meet the spirit of a law. Risk-intelligent organizations ferret out unusual, new events, like a woman swallowing a cow. This refreshed kind of risk management advances a "mindful" culture and healthy skepticism in an organization that paves a resilient path toward success.
JOANNA MAKOMASKI, the former risk manager for an energy delivery company, is a specialist in innovative enterprise risk management methods and implementation techniques with V3 Advisory Group.
October 1, 2009
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