Date: Tue, 19 Feb 2008 23:33

From: David Cheifetz

Subject: Economic Torts

John,

Cook v Lewis is straight forward. The jury was asked the wrong question. It wasn't asked whether Cook had been shot by either Akenhead or Lewis. 4 of the 5 in the SCC made it clear that that was the question it should have been asked because Cook's case was that it was one or other and that the evidence was there upon which the jury could and should have decided that question. Actually, it's as simple as this. All the jury had to do was decide who to believe, Akenhead or Lewis, since both denied shooting in Cook's direction. The one they didn't believe shot Cook. The substance of Locke's dissent has to be that it was open to the jury to decide that the plaintiff had failed to adduce enough evidence to even show that it had to be one of Akenhead or Lewis. Remember that, unlike Summers, there was no admission that the two has shot in Cook's direction.

If we were to assume, though, the admission had been made, then it becomes Summers. Again, what's the mystery?

The only agreement amongst the group was to share the catch. I don't see think that means there was a common purpose etc, but I suppose if the group had been off on, say, a fabled Snark hunt - of which everybody knows there's just one - and everybody was scouting for each other, and one of the group said he thought he saw the Snark off in the copse, so that Akenhead and Lewis fired based that, maybe that makes them joint tortfeasors.

But they weren't hunting just one snark. Each was hunting his own birds. And, they really weren't assisting one another in that, any more than one person driving them all to the scene, but not participating, (if that had been the case) would make the driver part of a common hunting purpose.

Like anything else, there's some linkage between the people. But, enough to make them joint tortfeasors so that the act of one was the act of them all? I don't think so.

Regards,
David

----- Original Message ----
From: John Murphy  
To: Jason Neyers  
Sent: Tuesday, February 19, 2008 3:53:07 PM
Subject: RE: ODG: Economic Torts

Jason (and anyone else who cares):

I don't what Rob says provides an easier or more convenient explanation of Cook v Lewis.

If you read what Rob said -- and I agree with it -- he stated very clearly that there must be a common course of action; and in his example he talked about A and B agreeing looking for gas leaks with lighted matches.

What they agreed on, critically, is something that of itself generates the risk that -- Rob would doubtless say -- ultimately causes an infringement of the plaintiff's rights. Simply going hunting in the woods (with or without a friend) isn't in the same league. But A pulling a trigger because he sees something move (albeit it at the same time that B pulls a trigger for the same reason) is different. But they didn't agree to shoot at the same time. As such the activity that causes the injury is not a concerted action in the same way as dangerously hunting gas leaks with lighted matches is.

A pulls the trigger without B egging him/her on (or anything like that or of equivalent effect). In Rob's description of Brooke v Boole, the concerted action involves two parties that "agree to check a gas pipe for leaks with action".

Walking in the woods with a rifle and friend (who is doing the same) isn't in the same league, nor is causatively linked in the same way.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>