Supreme Court
Action No. 11 of 1982
28th September, 1983
Rajasingham, J.

Mr. Hubert E. Elrington for the Plaintiff.
Mr. Glenn Godfrey for the Defendant.

Damages - Sufficiency of Evidence - Balance of Probabilities - Insufficiency of evidence to prove case.

J U D G M E N T

The Plaintiff's claim is for damages in a sum of $950 being the cost of replacement of a tinted glass pane in his door which he says was broken by the Defendant by firing at it with a pellet gun. The pane in question appears from photographs to have a hole drilled through it which implies that, as the Plaintiff stated, it must have been hit with a high velocity projectile because otherwise the glass would have shattered on impact. The Defendant denies that he caused the damage.

The Plaintiff stated that he saw the Defendant and his son shooting crabs with a handgun which fired pellets, and which the Plaintiff purported to identify as a Crosman vacuum gun. He says he saw the Defendant point it in the direction of his house and fired it and heard his ground floor door pane hit. Upon examination it was found to have a hole in it. He complained to the Police and they viewed it and recommended to the Defendant that he settle the matter. The Defendant appears to have considered an out of Court settlement, but decided against it. His evidence is that although he and his son were shooting crabs, his son in the front yard and he in the back yard, the gun was never fired in the general direction of the Plaintiff's house. The Defendant called Corporal Watler who investigated the matter and his evidence is that when the Plaintiff complained, he did not say he saw the Defendant shoot towards his house, but did say he thought it could have been the Defendant who did it. This is a material contradiction of the evidence of the Plaintiff, because in this Court the Plaintiff claims he actually saw the Defendant fire the gun at his door. The Defendant admits he owns a Daisy handgun which gas-fires pellets. The Plaintiff himself admits that a Daisy pellet gun could not cause this damage in this fashion. However, for some reason the Defendant at first said he had not decided whether he should produce the gun and then, after a three-month adjournment, produced a Daisy gun. I cannot help wondering whether the gun is not a substitute, although Corporal Watler said it was the same gun produced in the Magistrates Court. Unfortunately, this identification was not questioned even though Watler did not purport to identify it by make, let alone number. The gun produced in Court is a Daisy gas-fired pellet gun and, even according to the Plaintiff, "such a gun cannot damage a quarter inch pane of glass".

I am afraid that since the Plaintiff, although he said in evidence that the gun was a Crosman, did not challenge the identification of "C.E. 2" by Corporal Watler that that was the Defendant's gun which was produced by the police in the Magistrates Court as being the gun involved in the offence, he cannot now be heard to say that this gun could have caused the damage; he himself said it could not. The Crosman gun as portrayed in "C.E. 1" and the gun "C.E. 2" are so similar that the Plaintiff could very easily be mistaken about the make since he saw it in the hand of the Defendant at 40 feet at about 5.15 or 5.45 in the evening.

I am distinctly unhappy with the Defendant's evidence and am inclined to believe it to be untrue in several places. The Defendant said he himself shot the gun in the backyard and permitted his eight year old son to shoot it in the front yard adjoining a road on which, according to his own Counsel, children often played. I do not believe him but that is insufficient to establish the Plaintiff's case even on a balance of probabilities. The Plaintiff has to establish that it was this Defendant and not his son that fired the particular shot that damaged his door pane because his Action is against the Defendant personally. Even if I disbelieve the Defendant when he says he did not shoot in the front yard, it would not suffice; I would have to have evidence on which I can go further and hold that it was this Defendant who fired the particular shot. In view of the evidence of Corporal Watler, I am afraid I do not feel I can so hold. There is therefore insufficient evidence for me to hold that the Plaintiff has proved his case, although it is possible that that is how the damage to his door was caused. On a balance of probabilities, the Plaintiff must fail on the evidence before me.

I dismiss the Plaintiff's Action. I make no order as to costs.

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