Cook v. Lewis, [1951] S.C.R. 830 (1951)

Extract

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Cook v. Lewis, [1951] S.C.R. 830 (1951)

Supreme Court of Canada

Cook v. Lewis, [1951] S.C.R. 830

Date: 1951-10-02

David Cook (Defendant) Appellant;

and

Robert (Plaintiff) Respondent.

Present: Rand, Estey, Locke, Cartwright and Fauteux JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Negligence-Hunting accident-Jury's finding that plaintiff shot by one of two defendants but unable to say by which one-Whether finding of absence of negligence was perverse-Onus.

The respondent while hunting was shot in the face by bird-shot. The appellant and a member of his party of three hunters admitted discharging their guns in the vicinity practically at the same time but not at the same bird. Appellant's party had agreed to divide the bag evenly. The jury found that the respondent had been shot by one of these two hunters but were unable to say by which one. They also found that the injuries were not caused by the negligence of either. The action was dismissed by the trial judge but the Court of Appeal for British Columbia ordered a new trial.

Held (affirming the judgment appealed from) (Locke J. dissenting), that the finding of the jury exculpating both defendants from negligence was rightly set aside.

Per Rand J.: The jury should have been instructed that if the victim, having brought guilt down to one or both of two persons, could bring home to either or both of them the further wrong of having impaired his remedial right of establishing liability, then the legal consequence would be that the onus would be shifted to the wrong-doer to exculpate himself.

Per Estey, Cartwright and Fauteux JJ.: The proper verdict would have been reached had the jury been instructed that once the plaintiff had proven that he was shot by one of the defendants the onus was then on such defendant to establish absence of both intention and negligence; and that if the jury found themselves unable to decide which of the two shot the plaintiff, because in. their opinion both shot negligently in his direction, both defendants should be found liable.

Per Locke J. (dissenting): Since neither of the defendants was liable for the negligence of the other, in the absence of a finding as to which of them had shot the plaintiff, the action was properly dismissed. Since the answers declared the inability of the jury to say which of the defendants had fired the shot which caused the injury, no question arose as to whether the finding that neither of the defendants had been negligent was perverse.

APPEAL from the judgment of the Court of Appeal for British Columbia[1] setting aside the dismissal of the action by the trial j...

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