Brown J:

At about 11 p.m. on the night of 13 November 1952 the plaintiff was shot by the defendant who was one of a party of three men shooting flying foxes.The plaintiff had been asked to accompany the party because he knew of a suitable place.The plaintiff was shot at a distance of 15 to 20 feet, and suffered serious injuries.The defendant called no evidence.But, on behalf of the defendant, Mr. Boswell submitted that the plaintiff was guilty of contributory negligence because "(1) he was a voluntary member of the shooting party; (2) when he knew that the shooters were on the point of taking up their shooting positions he should have taken the precaution of getting out of the firing-line." With regard to the first part of that submission, in fairness to Mr. Boswell I should perhaps say that a similar argument appears to have been advanced in the well-known case of Stanley v. Powell [1891] 1 QB 86, though it has not, I think, been advanced since.It seems to me that it might as well be argued that a person who voluntarily takes a ride in a motor-car is guilty of contributory negligence if he is subsequently injured by the negligent driving of the driver. A gun, if used with proper care, is no more dangerous than a motor-car; a motor-car, if used negligently, can be no less dangerous than a gun.In regard to the second part of Mr. Boswell's submission, his idea of the "firing-line" is the line "through which the gun was raised in order to aim at the flying foxes overhead." I should have thought that, in the case of a careful shooter, the line of fire was the line from the barrel of the gun, when placed in the aiming position, to the target. I may add that at the moment when the shot was fired no flying foxes were overhead, or none within shooting range. [The remainder of the judgment deals with the question of damages.The learned Judge awarded $5,173.50 by way of special damages and $9,800 for general damages, making a total of $14,973.50. - Edn. MLJ].

Order accordingly.