How Do You Determine Liability when At Least One of Two Negligent Defendants Caused the Accident, but You Can’t Prove Which One?
Determining Liability When You Don’t Know Which Negligent Defendant Caused the Accident
In this blog I’ll be discussing the unique circumstances where a plaintiff is able to prove, on a balance of probabilities – 50% + 1 –, that the injuries he or she sustained was the result of an accident caused by the negligence of at least one of two defendants, but is unable to prove which one’s negligence ultimately caused the accident. This fact pattern can potentially leave a court in a legal quandary, as it would be left with a great degree of uncertainty over what to do in the interest of justice. A strong, legitimate argument can be made that it would be unjust for a court to impose liability on one of the two defendants, who the plaintiff has failed to prove, on a balance of probabilities, to have caused the injuries and impairments that he or she is suing in tort for compensatory damages. However, a strong, policy argument can also be made that it would be equally unjust to not give compensatory damages to the innocent plaintiff who suffered severe or catastrophic injuries and impairments, at the expense of two defendants:
- Whose recklessness created a dangerous environment and increased the risk of, or the degree of probability that, harm to such an extent that it constituted a material contribution to the plaintiff’s damages; and
- Who owed a duty of care to the plaintiff and failed to do so, compounded by the fact that the harm would have only been caused by a breach of that duty and science failed to enable the innocent plaintiff to accurately attribute, as between the two defendants, the precise responsibility for the damages he or she has sustained.
In such a factual scenario like this, in which a court has to make a difficult ruling between two legitimate alternatives, which are, prima facie, equally undesirable due to the consequences to one innocent party, the court must ensure that its decision is coherently in accordance with principle established from jurisprudence, in order to serve the ends of justice. A court has to ultimately decide whether or not the injustice of imposing liability on a defendant who did breach a duty of care owed to the plaintiff, but whose negligence didn’t directly cause the accident, is sufficiently outweighed by the injustice of denying redress to an innocent victim seeking compensatory damages in restitution. The Supreme Court of Canada had to deal with this legal quandary in a 1951 case entitled Cook v. Lewis, 1951 CanLII 26 (SCC),  SCR 830.
Cook v. Lewis: Balancing Injustices Against Innocent Parties: The Lesser of Two Evils
In Cook v. Lewis, supra, the plaintiff was shot in the face by a bird-shot while hunting. The two defendants, together with a third hunter, were hunting for grouse, and they admitted at trial to discharging their guns in the vicinity of the plaintiff, almost at the same time, but not at the same grouse.
The questions put by the Honourable Wood J. to the jury’s answers were as follows:
- Q. Was the Plaintiff shot by either of the Defendants?
- Q. If so by which one of them?
- (no answer).
- Q. If the Plaintiff was shot by one of the Defendants are you able to decide by which one?
- Q. Were the Plaintiff’s injuries caused by the negligence of either of the Defendants?
- Q. Damages
- Special (Nothing filled in).
- General (Nothing filled in).
The jury found that the plaintiff was shot by one of the two defendant-hunters, however, they were unable to say by which hunter.
The jury found that either the first or second defendant hunter had been the cause of the injury sustained by the plaintiff, but the jury declared that the plaintiff had not satisfied them which of the two it was, which created a problem of proof. The jury also found that the injuries were not caused by the negligence of either. Since, the jury obviously answered the questions in an unclear and perverse manner, the action was dismissed by the trial judge. However, the Court of Appeal for British Columbia ordered a new trial, and then the Supreme Court of Canada agreed.
Were the Plaintiff’s Injuries Caused by the Negligence of either of the Defendants?
Concerning the jury’s answer to the fourth question, that the plaintiff’s injuries were not caused by the negligence of either of the defendant hunters, the Supreme Court of Canada, via the judgment of the Honourable Estey, Cartwright and Fauteux JJ. which was delivered by the Honourable Cartwright J., opined that the Court of Appeal for British Columbia was right in deciding that the trial judge’s finding should be set aside. The Court of Appeal ruled that the jury acted perversely in finding that neither defendant was negligent. The Supreme Court of Canada found that the learned trial judge did not charge the jury correctly in regard to the onus of proof of negligence.
If the Plaintiff was Shot by one of the Defendants are you able to Decide by which One?
Concerning the jury’s answer to the third question, in which the jury indicated that they were unable to find which of the two defendants fired the shot which did the damage to the plaintiff, the Supreme Court of Canada via the Honourable Cartwright J., referenced the general rule stated in Starkie on Evidence, 4th Edition, 860, which was quoted with approval by the Honourable Patterson J.A. in the caed entitled Moxley v. The Canada Atlantic Railway Company, (1887) 14 O.A.R. 309 at 315, as follows:
Thus in practice, when it is certain that one of two individuals committed the offence charged, but it is uncertain whether the one or the other was the guilty agent, neither of them can be convicted.
The Supreme Court of Canada via the Honourable Cartwright J., noted that this rule was also applicable to civil actions, so that if at the end of a civil trial, the plaintiff has proved that he or she was negligently injured by either the first defendant or the second defendant, but is unable to establish on a balance of probabilities – 50% +1 –, which of the two defendants caused the injury, then his or her action must fail against both defendants unless there are special circumstances which render the rule inapplicable. The reason is because historically, our jurisprudence in Canada has always required a strict proof of causation, where you, the plaintiff claiming negligence on the part of the other party – typically the defendant –, had to show that, on a balance of probabilities, 50% + 1, the defendant’s conduct or behaviour caused the injury that you sustained, in order to impose liability on the defendant to pay your compensatory damages.
The plaintiff in the Cook v. Lewis, supra, however, argued that such special circumstances existed in the case to depart from the aforementioned general rule stated in Starkie on Evidence, 4th Edition, 860. The plaintiff argued that the two defendants were joint tortfeasors who engaged in a joint enterprise under such circumstances that they were liable for the acts of the other, which was evidenced by the fact they were hunting together and agreed to divide the bag evenly. However, the Supreme Court of Canada via the Honourable Cartwright J., noted that it was “unable to find any authority for the proposition that the mere fact that a party of persons are hunting together and have agreed to divide the bag renders each liable for the tortious acts of all the others”.
The plaintiff also argued that the cause of action against the two defendants should be the same, because they were “joint tortfeasors”, which would mean that they fall into a certain class of persons, such as the following examples: “The agent who commits a tort within the scope of his employment for his principal, and the principal; the servant who commits a tort in the course of his employment, and his master; two persons who agree on common action, in the course of, and to further which, one of them commits a tort”. In these examples of judicially accepted classes of joint tortfeasors, where one tort committed by one of them, it is committed on behalf of, or in concert with another. This begs the question: were the two defendants in Cook v. Lewis, supra, deemed to be joint tortfeasors during their hunting expedition? The Supreme Court of Canada via the Honourable Cartwright J., pointed out the difficulty of applying the legal definition of joint tortfeasor to the defendants in the case at bar, as follows:
To do so would bring about the result that every member of a party going out together, with a lawful common object, social or sporting, which could be carried out without negligence, would be vicariously liable for the negligence of any member of the party. So far as I have been able to ascertain, such a liability has not been held in any reported case to exist at common law.
There was, I think, no evidence in the case at bar on which it could be found that the relationship of principal and agent or of master and servant or of partners existed between Akenhead and Cook.
They were engaged in a lawful pursuit. Neither had any reason to anticipate that the other would act negligently. Neither had in fact either the right or the opportunity to control the other. Neither appears to have assisted or encouraged the other to commit a breach of any duty owed to the plaintiff.
Therefore, the Supreme Court of Canada via the Honourable Cartwright J., rejected the notion that the two defendants in Cook v. Lewis, supra, fell within the legal definition of tortfeasors.
Considering the Principle State in the American Case Summers v. Tice
The plaintiff also argued that principles stated in the judgment in the American case entitled Summers v. Tice, (1948) 5 A.L.R. (2nd) 91, should be followed. The plaintiff argued that the jury might have found the defendants liable if in their view of the direct and circumstantial evidence adduced, they believed both defendants fired in the direction of the plaintiff, under such circumstances that their respective conduct constituted a breach of a duty that was owed to the plaintiff. The Supreme Court of Canada via the Honourable Cartwright J., wasn’t able to find any Canadian or English cases that considered this particular proposition of the law, but still considered the judgment, which read as follows:
When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers-both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence, it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. This reasoning has recently found favour in this Court.
Therefore, the judgment in Summers v. Tice, supra, if followed, provides justification for a court to decide that the injustice of imposing liability on a defendant who did breach a duty of care owed to the plaintiff, but whose negligence didn’t directly cause the accident, is sufficiently outweighed by the injustice of denying redress to an innocent victim seeking compensatory damages in restitution. However, the Supreme Court of Canada via the Honourable Cartwright J., did not think it was necessary to decide whether the aforementioned proposition in law laid out in Summers v. Tice, supra, should be accepted as stating the law of British Columbia, but noted that for the reasons given in this case, if under the circumstances of the Cook v. Lewis, supra, case, the jury, having decided that the plaintiff was shot by either the first or second defendant, found themselves unable to decide which of the two shots hit the plaintiff, because in their opinion both defendants shot negligently in his direction, then both defendants should have been found liable. Therefore, the Supreme Court of Canada via the Honourable Cartwright J., found that the learned trial judge should have sent the jury back to consider the matter further with a direction to the above effect, in view of their answer to the third question.
Embracing the Robust and Pragmatic Approach to Causation: A Shift in Onus
The Honourable Rand J. of the Supreme Court of Canada in the Lewis v. Cook, supra, case, who also agreed with the Court of Appeal of British Columbia, that a new trial should be ordered, seem to embrace the spirit of the judgment in Summers v. Tice, supra, as well as the idea of an imposition of a provisional or tactical burden to the defendant – not a shift of the burden of proof – in situations where the direct or circumstantial evidence adduced by the plaintiff results in an inference being drawn that’s adverse to the defendant, which requires the defendant to adduce evidence to the contrary, or run the risk of an adverse inference against him or her. This notion of an imposition of a provisional or tactical burden was articulated by the Honourable Sopinka J. in the Supreme Court of Canada case entitled Snell v. Farrell, 1990 CanLII 70 (SCC),  2 SCR 311, (1990), 72 D.L.R. (4th) 289,  2 S.C.R. 311.
If you want to learn more about the imposition of a provisional or tactical burden to a defendant, then please click the “link” to read my blog entitled “What is the Difference between the Traditional Approach to Causation, and the Robust and Pragmatic Approach to Causation? ”.
In Lewis v. Cook, supra, the Honourable Rand J. eloquently expressed the rational justification for a shift in the onus of proof, which is similar to an imposition of a provisional or tactical burden to the defendant, when he stated at paragraphs 832 and 833, the following:
What, then, the culpable actor has done by his initial negligent act is, first, to have set in motion a dangerous force which embraces the injured person within the scope of its probable mischief; and next, in conjunction with circumstances which he must be held to contemplate, to have made more difficult if not impossible the means of proving the possible damaging results of his own act or the similar results of the act of another. He has violated not only the victim’s substantive right to security, but he has also culpably impaired the latter’s remedial right of establishing liability. By confusing his act with environmental conditions, he has, in effect, destroyed the victim’s power of proof.
The legal consequence of that is, I should say, that the onus is then shifted to the wrongdoer to exculpate himself; it becomes in fact a question of proof between him and the other and innocent member of the alternatives, the burden of which he must bear. The onus attaches to culpability, and if both acts bear that taint, the onus or prima facie transmission of responsibility attaches to both, and the question of the sole responsibility of one is a matter between them.
Therefore, in factual scenarios like in Lewis v. Cook, supra, where two defendants were found to be negligent in their conduct and behaviour, but science cannot assist with accurately determining which defendant’s negligence precisely cause the damage to the plaintiff, the Honourable Rand J. offers another legitimate argument to rule in favour of the victim – the plaintiff –, even though only one of the defendants caused the accident, by reframing the argument around the factor of culpability in determining legal responsibility for damage done to the plaintiff, and stating that the onus should attach to culpability as opposed to causation.
The justification for the shift in onus, is essentially that not only did the negligence of both defendants – even though only one of them caused the damage – breach the duty of care they owed to the plaintiff by setting in motion a dangerous force that embraced the plaintiff within its scope of adverse, probable consequences, they have also made it extremely difficult – if not impossible – for proving that the damages sustained by the plaintiff were from their negligent conduct or behaviour. As such, again, the defendants not only violated the plaintiff’s substantive right to security, but they also culpably impaired the plaintiff’s remedial right of establishing liability that’s required to successfully obtain just restitution via compensatory damages. This is also another strong argument to support why a court, in such a situation, should decide that the injustice of imposing liability on a defendant who did breach a duty of care owed to the plaintiff, but whose negligence didn’t directly cause the accident, is sufficiently outweighed by the injustice of denying redress to an innocent victim, who has had both his or her substantive right to security and right to establishing liability, violated.
The Honourable Rand J. ultimately found the jury in Lewis v. Cook, supra, ought to have been asked by the learned judge to find from which gun came the shots that did the harm. Even without the direction as to onus, the Honuurable Rand J. found that the jury should have been sent back to endeavour to complete their findings.
Therefore, in a factual scenario such as in Lewis v. Cook, supra, a strong argument can be made that the evidential difficulty from the impossibility of identifying which of the guns fired by the two negligent defendants delivered the crucial bullet that ultimately caused damage to the plaintiff, should come back upon the two negligent defendants, and not the blameless, innocent plaintiff. The unfortunate consequence that one of the two defendants well be found to be liable for an injury to the plaintiff that he or she did not in fact inflict, is outweighed by the less attractive alternative, which is that the innocent plaintiff, who has had both his or her substantive right to security and right to establishing liability, violated by both of the defendants’ negligence, would receive no compensatory damages and just restitution, even though at least one of the negligent defendants injured him. In a 2002 House of Lords case entitled Fairchild v. Glenhaven Funeral Services Ltd. House of Lords.  3 AII E.R. 305, the court, upon analyzing the Cook v. Lewis, supra, case, commented on this balancing exercise between two injustices at paragraph 40, as follows:
This balancing exercise involves a value judgment. This is not at variance with basic principles in this area of the law. The extent to which the law requires a defendant to assume responsibility for loss following upon his wrongful conduct always involves a value judgment. The law habitually limits the extent of the damage for which a defendant is held responsible, even when the damage passes the threshold ‘but-for’ test. The converse is also true. On occasions the threshold ‘but-for’ test of causal connection may be over-exclusionary. Where justice so requires, the threshold itself may be lowered. In this way the scope of a defendant’s liability may be extended. The circumstances where this is appropriate will be exceptional, because of the adverse consequences which the lowering of the threshold will have for a defendant. He will be held responsible for a loss the plaintiff might have suffered even if the defendant had not been involved at all. To impose liability on a defendant in such circumstances normally runs counter to ordinary perceptions of responsibility. Normally this is unacceptable. But there are circumstances, of which the two hunters’ case is an example, where this unattractiveness is outweighed by leaving the plaintiff without a remedy.
Therefore, embracing a more flexible, robust and pragmatic approach to causation, as opposed to a stringent application of the traditional approach to causation, is necessary in these exceptional circumstances, such as the factual scenario in Cook v. Lewis, supra, where the unattractiveness of holding a defendant responsible for damages sustained by the plaintiff that his or her negligent actions didn’t directly cause, is outweighed by the prospect of leaving the blameless victim – the plaintiff – without redress or just restitution.
If you want to learn more about the difference between the traditional approach to causation, and the robust and pragmatic approach to causation, then please click the “link” to read my blog entitled “What is the Difference between the Traditional Approach to Causation, and the Robust and Pragmatic Approach to Causation? ”.
I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law and personal injury law.
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