Kirkpatrick et al. v. Lament

Kirkpatrick et al. v. Lament

Majority held the jury’s finding that excessive force began only after the second set of doors and extended to the sergeant’s desk was unsupported by the evidence; the trial judge adequately addressed s.15 by reading it and giving concrete examples of corroboration; accordingly the Court allowed the appeal and restored the trial judgment dismissing the action. Dissent would have ordered a new trial as to Kirkpatrick because the judge failed to direct that burden shifts to defendant where wrongful and lawful acts are commingled and causation cannot be proved by plaintiff.

Citation
[1965] SCR 538
Parties
Defendant Appellant: James Kirkpatrick; Defendant Appellant: Douglas Fraser; Defendant Appellant: Victor Dawson; Plaintiff Respondent: Joseph Lament Jr. (by next friend Joseph Lament Sr.)
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
9 April 1965
Procedural Posture
Torts — Assault/arrest; Damages for Personal Injury / Appeal to Supreme Court of Canada From the Court of Appeal for Ontario; Judgment at Trial Restored
Outcome
Appeal allowed; judgment at trial restored; costs to appellants
Legal Topics
Excessive Force During Arrest, Corroboration of Evidence for Mentally Incompetent Plaintiff (s.15 Evidence Act), Burden of Proof Where Wrongful and Justified Acts Commingled, Appellate Review of Jury Findings
Source Language
English
Torts Evidence Criminal Law (police Powers/use of Force) Excessive Force During Arrest Corroboration of Evidence for Mentally Incompetent Plaintiff (s.15 Evidence Act) Burden of Proof Where Wrongful and Justified Acts Commingled Appellate Review of Jury Findings

Case Brief

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Parties

James Kirkpatrick

Defendant Appellant

Douglas Fraser

Defendant Appellant

Victor Dawson

Defendant Appellant

Joseph Lament Jr. (by next friend Joseph Lament Sr.)

Plaintiff Respondent

Procedural Posture

Torts — Assault/arrest; Damages for Personal Injury / Appeal to Supreme Court of Canada From the Court of Appeal for Ontario; Judgment at Trial Restored

Legal Issues

  1. 1 Whether the jury’s finding that excessive force was used was supported by the evidence
  2. 2 Whether the excessive force found by the jury caused the plaintiff’s brain blood clot
  3. 3 Whether the trial judge adequately instructed the jury on corroboration required by s.15 of the Ontario Evidence Act

Ratio Decidendi

Majority held the jury’s finding that excessive force began only after the second set of doors and extended to the sergeant’s desk was unsupported by the evidence; the trial judge adequately addressed s.15 by reading it and giving concrete examples of corroboration; accordingly the Court allowed the appeal and restored the trial judgment dismissing the action. Dissent would have ordered a new trial as to Kirkpatrick because the judge failed to direct that burden shifts to defendant where wrongful and lawful acts are commingled and causation cannot be proved by plaintiff.

Court Disposition

Appeal allowed; judgment at trial restored; costs to appellants

Orders

  • Appeal allowed
  • Judgment at trial restored (action dismissed)