COOK v. LEWIS RE‐EXAMINED
| Published date | 01 May 1961 |
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb02180.x |
| Author | T. Brian Hogan |
| Date | 01 May 1961 |
COOK
r).
LEWIS
RE-EXAMINED
IN
Cook
v.
Lewis
a party consisting of
A,
B and
C
was grouse-
shooting in the vicinity of Quinsam Lake
on
Vancouver Island.
X,
Y
and
Z
made up another party which was similarly engaged.
As
A,
B
and
C
in line approached a clump of trees,
Z,
who saw them and
anticipated danger to
X,
who was
in
that particular thicket, called
out a warning. This warning was misunderstood by
A,
who thought
that
Z
was referring to B’s dog, and B said that he did not hear
it
at all. Just then a covey of grouse flew up, both
A
and B fired,
there was a scream from the thicket and
X
appeared. He had
been shot in the face and eventually lost the sight of an eye.
At
the trial the jury, possibly because they misunderstood the
direction of Wood
J.,
the trial judge, found that neither
A
nor
B
had been negligent. The point hardly matters since in the outcome
both appellate courts had little difficulty in deciding that the
finding of the juiy was perverse. There was then only one point
of
real difficulty
:
who did it
?
How
the trial judge approached this problem has to be culled
from the judgments
of
the appellate courts. Both
A
and
B,
of
course, denied shooting
X,
but neither explained quite what
happened,
A
said he
took
the bird which was nearest his side,
and
B
said he took a bird straight ahead of
him,
but this was not
apparently related to the relative positions of
A,
B and
X
which
might have resolved the matter without undue difficulty.
As
it
was
Wood
J.
explained to the jury that the onus of proving negli-
gence lay
on
X,
and then gave the
jury
certain questions to answer.
One of these questions was:
‘‘
If
the plaintiff was shot by one of the defendants, are
The jury said they were not, and Wood
J.
entered judgment for
the defendants,
A
and B.
The Court of Appeal for British Columbia ordered a new trial.2
Delivering the judgment of the court Sidney Smith
J.A.
did not
appear to consider the case unduly difficult. He thought that if
the jury had been properly directed,
viz.,
directed that as between
A and
B
they had only to decide which one was the more likely to
have shot
X,
they would have been able to resolve the matter on
the available evidence. There are indications in the judgment that
he himself was pretty sure which one
it
was, and he evidently did
not consider that
A
and B were
so
placed that it was impossible
1
[1950]
4
D.L.R.
136
(British Columbis C.A.); [1951]
S.C.R.
830
(Canadian
2
[1950]
4
D.L.R.
136.
you able to decide which one?
”
Siipreme
Court).
831
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