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Date: Tue, 19 Feb 2008 23:19 From: David Cheifetz Subject: Economic Torts
Rob Coincidences abound. First, about Cook v Lewis. Oddly enough, I was just complaining to another member of this list about the ongoing mistaken belief - in practitioners, academics, and judges - that the SCC allowed Cook's claim. It didn't. It sent the blasted thing back for a new trial on Cook's appeal from the dismissal. The four who sent it back thought that the jury should have been asked who, as between Lewis and Akenhead, shot Cook. That's because it was Cook's allegation that it was one of the two. Both denied shooting in his direction. If we assume that they were the only two - there were 5 in the group including Cook who was off in the grove - it had to be one or the other. All the jury had to do was believe one or the other and the other was the shooter. That's why the majority held there was evidence upon which the jury could have decided who shot who. That's essentially one Rand's points, too. Cartwright J, writing for the majority, said, explicitly, at p. 843 "I respectfully agree with the [British Columbia] Court of Appeal that the jury should have been able to decide which one of the defendants fired the shot which struck the plaintiff". That's because all the jury had to do is to decide, in substance, which to believe of Akenhead and Lewis. As the majority also said, at p. 840, Cook v. Lewis is different from Summers v Tice because, in Summers: "The decisive finding of fact in that case was that both of the defendants had shot in the direction of the plaintiff when they knew his location. There is no such finding in the case at bar. It is not, I think, necessarily implicit in the jury's findings that one of the two defendants shot the plaintiff but that they can not decide which". Locke's dissent was, in substance, that there was enough evidence there for a jury acting properly to either decide, on the balance of probability, that the shooter was either Akenhead or Lewis, or to decide that there wasn't enough to decide on the balance because Cook hadn't met the onus. Therefore, there was no basis for the SCC to reverse the BCCA decision affirming the trial decision dismissing, based on the jury's answers. Conveniently, Cook is online, now, for free. But it's not just lawyers who get it wrong. Even, seemingly, Canadian appellate courts - even British Columbia's - and the SCC. For example, in the recent Jackson v Kelowna, 2007 BCCA 129 the BCCA wrote, at para. 21, that "the "material contribution" test may be applied does not apply to this case, but to cases where it is truly impossible to say what caused the injury, such as where two tortious sources caused the injury, as in Cook v. Lewis". I suppose it's possible that the BCCA was referring to the wounds on Cook's face other than the shot in his eye - i.e., that one gun was the source of the shot that destroyed Cook's eye and other that caused his other facial wounds but I doubt it. And, then, there's the SCC's description in Resurfice, at para 25: One situation requiring an exception to the “but for” test is the situation where it is impossible to say which of two tortious sources caused the injury, as where two shots are carelessly fired at the victim, but it is impossible to say which shot injured him: Cook v. Lewis, 1951 CanLII 1 (S.C.C.), [1951] S.C.R. 830. Pardon me, but all 5 judges who decided Cook said, directly or indirectly, and 3 explicitly, that it was possible, on the evidence, to say (to decide on a more likely than not basis) which of Akenhead or Lewis shot Cook, and the jury should have been asked to do that. Somehow, Cook has become conflated with Summers v. Tice. I suppose that's not surprising given the size of the elephant to the south and the attention that most Canadian law students give torts in their first year; still, you'd think that the Cartwright J.'s reasons are explicit enough that somebody'd notice in argument in court. It's always been a bit of a giggle to me that people would suggest the SCC sent Cook back for new trial on the assumption that it would be impossible for either Akenhead or Lewis to meet the onus. But, then, I'm not a judge. Or an academic, right? Only a practitioner who primarily makes the world safe for oppressed institutional clients. And practitioners of that sort don't know anything or else they'd be academics, or judges. (I haven't yet figured out how the appointment process converts one from know-nothing practitioner to learned judge, but maybe that's one of those mysteries that are revealed only to the chosen.) Oh well, off my soap box, for now. I can't add anything to your explanation of what is and isn't joint tortfeasance and why. I agree, entirely. And, I agree, the hunters in Cook were not joint tortfeasors. They could have been concurrent several tortfeasors (using Glanville Williams' terminology, had shot from both struck Cook, or perhaps had they each done something otherwise tortious that resulted in whichever one shot Cook shooting Cook - but that wasn't the case, on the evidence). Merely agreeing to share the bag didn't make them so. Leave it that, usually, too many Canadian judges have a problem with the difference between joint tortfeasors and concurrent several tortfeasors whose separate wrongs cause the same damage. I'd not be surprised to see that problem is current on your side of the water too. (I haven't read Meretz, yet, so I'm not suggesting that the various wrongdoers should have been so described.)
Best,
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