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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 37 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

Unidentified Wrongdoer (Imputation)

Cook v. Lewis, [1951] S.C.R. 830. (CB1p542)

Jurisdiction

British Columbia

Facts

Cook and Akenhead were hunting together, using identical guns and ammunition. They fired simultaneously at some grouse, at which point Lewis, hidden behind a clump of trees, was hit by several particles of shot. It was impossible to determine whether Lewis was hit by Cook’s shot, Akenhead’s, or both.

Issues

Could two defendants be held liable for damage caused by the fault of one of them?

Holding

Yes.

Ratio

Cartwright J looked at the similar American case of Summers v. Tice, which reversed the burden of proof of causation to the defendants on the grounds that they had “brought about a situation”—they were both negligent. (But Cartwright J hesitated to uphold this decision altogether.)

Rand J agreed that the burden of proof of causation should be reversed, for the additional reason that the defendants’ actions had made it impossible for the plaintiff to prove causation.

Locke J dissented, dismissing the action for lack of proof of causation.  

Comments

Khoury considers the reasons given for reversal of the burden of proof to be “policy” reasons.  

In civil law terms, “partial causation” was proven. We know that the damage was caused by a gunshot, but we don’t know which one.

Massignani c. Veilleux, [1987] R.R.A. 541 (C.A.). (CB1p545)

Jurisdiction

Quebec

Facts

The Massignani brothers and the Veilleux brothers were out hunting when they got into a fight. In the course of the fight, one of the Massignanis managed to get ahold of Jean-Guy Veilleux’s gun. When the Veilleuxes walked off to call a conservation agent, one of the Massignanis threatened to kill them, and one of the Massignanis fired at them as they were walking away. Jean-Guy Veilleux was hit and lost his right eye. It was impossible to determine which Massignani had fired. The Massignanis were acquitted in a criminal trial.

Issues

Could two defendants be held liable for damage caused by the fault of one of them?

Holding

Yes.

Ratio

Crête J based his decision on Art.1106, CCLC, which said that “L’obligation résultant d’un délit ou quasi-délit commis par deux personnes ou plus est solidaire.” In his opinion, the Massignanis’ dangerous behaviour was the fault, not just the actual shot.

The Massignani c. Veilleux decision and others like it were codified in the CCQ as (a.1480):

If people have separately committed faults which may have caused the injury, and it is impossible to determine which fault caused it, they are held solidarily liable, just as if they had taken part in a wrongful act together.

Fairchild v. Glenhaven Funeral Services (seminar exercise):

case about a man who got cancer from asbestos from one of several employers

legal issues:

Other (non-asbestos) causes were possible, although the House of Lords ignored this.

Only two of several employers were still around to sue.

Causation (imputation) was unproven.

policy issues:

The plaintiff deserves compensation.

The uncertainty was created by the defendants.

The defendants created a risk.

Sindell v. Abbott Laboratories, 607 P2d 924 (Calif. SC 1980). (CB1p548)

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