MISTAKEN FOR DEER

Poverty Bay Herald, Volume LX, Issue 18234, 1 November 1933, Page 11

MISTAKEN FOR DEER

MAN SHOT IN LEG DAMAGES CLAIM UPHELD Reserved judgment on a claim for damages bv Kenneth William Exton against Adolph Gustace Puklowski in. a case arising out of a shooting accident at Wangamoa on June 11 last was given in favor of plaintiff by Mr. T. E. Mansell, S.M.. iu the Nelson Magistrate’s Court. In giving bis decision, the magistrate said:—“There is no dispute about the substantial facts in this case. The plaintiff was proceeding up a spur of a hill at Wangamoa in search of deer, and the defendant was proceeding! up an adjacent spur, also in search of deer. The defendant fired his rifle at the plaintiff thinking that he was a deer, and the bullet passed through the plaintiff’s leg. The plaintiff alleges that the defendant was negligent. “I incline to the view that the defendant is absolutely liable, irrespective of negligence, as he discharged the bullet at the defendant intentionally under the mistaken belief that he was shooting a deer. A mistake of fact is not a defence in an action of fort. There is authority for the proposition that where, one or two innocent persons must bear a loss he must bear it whose act caused it. However, assuming that negligence has to be proved, in my opinion the ease for the plaintiff is established. “The injury the defendant inflicted on the plaintiff was either due to negligence or to an inevitable accident. I am clearly of the opinion that the injury was not due to an inevitable accident, as it could have been avoided by the exercise of reasonable care. If the defendant had acted less impulsively and taken the precaution of making sure that what he saw was a deer, he would have seen that it was not. It may be that the taking of such precaution may at times enable a deer to escape, but that misfortune is infinitely less than shooting a man by mistake.

“It was not of vital importance that the defendant should shoot a deer and there was therefore no reason why he should not have exercised consummate care in the use of his firearm,” continued tiie magistrate. “As to general damages, they should not, of course, be punitive. Defendant acted innocently, and I quite sympathise with him. Moreover, the plaintiff was wearing a jacket almost precisely similar in color to that of a deer. The facts of this case seem to indicate that it is imprudent to do so in localities which deer stalkers frequent.” General damages were .fixed at £ls. The total amount of the judgment was £SB 3s, with costs, witnesses’ expenses and solicitor’s fee, totalling £lO 11s 6d,