The many facets of Cook v. Lewis.

• Author: Veitch, Edward
• Position: Negligence - Canada

1. INTRODUCTION

   This article explores various lessons to be drawn from Cook v. Lewis, (1) a case of seemingly lasting interest and, in so doing, will mimic the economy of exposition that is a hallmark of its reasons for decision. The case is an early example of the jurisprudence of the Supreme Court of Canada acting as our court of last resort. It reveals the importance of the drawing of pleadings and how plaintiffs can thereby gain advantages. It reviews the choices available to an aggrieved party faced with multiple defendants. It is a singular example of a reversed burden, not just evidentiary but of the legal onus itself. The obiter dicta in Cook v. Lewis foresaw development of liability attaching to inherently dangerous activities; it pointed the way to the very recent developments of liability based on destruction of the plaintiff's proof and, some would find, the origins of the duty to warn.

   I have observed elsewhere that the Supreme Court of Canada enjoys today a deserved reputation internationally as a progressive institution. (2) That was not always so, in part because the Court languished as an intermediate appellate tribunal until the abolition of civil appeals to the Judicial Committee of the Privy Council in 1949, (3) the last case arriving in Downing Street, London, in 1960. (4) Justice Rand himself reportedly offered an explanation for the restricted ambition of the Court before its liberation:

   During the hearings ... the late Ivan Rand remarked to me that great as the late Chief Justice Sir Lyman Duff was, he could never develop his talent because of the Privy Council and the necessity for Duff to always write his legal opinions in the light of what the higher tribunal might decide. (5) That appreciation rings true, as any discussion with a trial judge or appellate justice will confirm. A primary or intermediate body must always be mindful of what a superior court has done earlier and rein in their initiative lest it be deemed unworthy on appeal. Our principal case then, in 1951, was the product of a court free to go its own way. The decision attracted the immediate attention of some of the sharpest minds of the day. (6) But why. Was it the individual fact pattern or the reasons for decision that caught their fancy? A reading of the literature around the globe determines that it was both, as a leading United States text makes clear. (7)

2. COOK v. LEWIS

   On the opening day of hunting season for blue grouse and deer in 1948, the 11th of September, Robert Lewis was hunting with his brother Jack and a friend, Fitzgerald. He suffered a gunshot wound to the face which he claimed was caused by one of another group of hunters comprising David Cook, one Akenhead and a lad, Wagstaff, who was not a shooter. The latter threesome had earlier agreed to share their bag. As it was opening day, the area teemed with hunters. Justice Rand held, with Justices Estey, Cartwright and Fauteux concurring, and with Justice Locke in dissent: if a plaintiff shows guilt in one or both of two persons, then their acts in themselves impaired the plaintiff's capacity to establish liability and the onus shifts to the wrongdoers to exculpate themselves.

3. LESSONS OF COOK v. LEWIS

   The initial commentator was the legendary Glanville Williams, Quain Professor of Jurisprudence. (8) He discerned the origins of the rule in Cook v. Lewis in United States' case law, (9) but found most interesting the individual manner in which the Court reached its decision. (10) He thought the principle, of casting on each defendant the burden of self-exculpation, to be an important contribution to the law of tort and the law of evidence. He supported the outcome on policy grounds: to deny a remedy would mean that justice would certainly not be done, whereas to grant recovery ensured a fifty percent chance that justice would in fact be done. (11) He observed that, while the two hunters were neither joint tortfeasors nor several concurrent tortfeasors, the prevailing apportionment legislation in the provinces would come to the plaintiff's aid. (12)

   The second analyst was much less enthusiastic. Brian Hogan began by chiding Justice Rand for failing to take notice of the criminal law jurisprudence. (13) He referred to an eighteenth century decision, on similar facts, but in which all of the accused were discharged. (14) He declared the Canadian rule to be: where there is one guilty party, as between two named defendants, the guilty party not only injured the plaintiff but in conjunction with the circumstances made it impossible for the plaintiff to prove his case and thus the burden shifted. (15) He found this "startling". The late John Fleming found Hogan's critique "unconvincing", (16) which position has carried the day. (17) Hogan acknowledged that Justice Rand enjoyed the confidence of the treatise writers of the time in Australia, (18) England (19) and the United States. (20) But, he remained unimpressed by the implicit support given to Justice Rand by Lord Denning, M. R. in 1954, (21) asking rhetorically: was it fair to ask an innocent party to assist the plaintiff to prove his case? However, the presumption that both defendants in Cook v. Lewis were in breach of a duty of care to the plaintiff caused Hogan to pose two awkward questions: (a) What if it was known that one of the defendants did not breach any duty of care? In such circumstance, to hold all liable because the actual wrongdoer remained unknown, he characterised as "monstrous". (22) And (b), what if it was known that one of the defendants did not cause the harm but was guilty of a breach of a duty of care? Was multiple responsibility justified on some notion of "guilt", "'fault" or "blameworthiness"? Therefore, could a breach of a duty of care by an "innocent" party ever justify shifting of the evidentiary burden? Hogan preferred the reasoning of Justice Locke, in dissent: a party could only be a defendant if, on the balance of probability, he caused the damage. (23) Therefore, Hogan's doctrinal response: if two defendants were joint tortfeasors, they were liable; if several concurrent tortfeasors, they were all on the hook. But unless they were either, the plaintiff must fail. His policy rejoinder was unequivocal: the objection to Cook v. Lewis was that it failed to give the interests of the defendants equal consideration to those of the plaintiff. (24)

   Glanville Williams and Brian Hogan were first out of the blocks in their treatment of Cook v. Lewis. For law teachers, it was too good to pass up. How better to befuddle first year law students--an exception to a hallowed rule: if the plaintiff failed to show which of two defendants was negligent, then the plaintiff failed, but for the rule in ...! (25) As a result, students in the common law world have been dragooned into parsing the language of the reasons for decision since they were published over fifty years ago. Apart from the works listed earlier, (26) references have appeared in Atiyah...