A long hot summer resulted in some different Court decisions. But the very recent British Columbia case (July 2005) involving an African hunting safari of exotic game and a taxidermist is evidence that the law, even when applied to strange facts, can bring about just results.
FACTS
In this case three men travelled to Zimbabwe in August 2001 with a company that specialized in hunting safaris. Before the three men departed, they contracted with a company to process what they were certain would be their hunting trophies. The taxidermist was responsible for importing the trophies back into Canada and for their delivery to the taxidermist’s office, where they would be preserved and delivered back to the three men within a ten-month period.
It was a very successful safari with the three men taking 25 animals, including bush pigs, a Cape buffalo, warthogs, and zebras, some of which were said to be relatively rare, prized and of exceptional size. At the end of the safari, the three men packed their trophies into crates for shipment to Canada Customs as directed by the taxidermist. The trophies arrived at Canada Customs in mid-November 2001, and the three men paid $7,893.53 to the taxidermist to cover the brokerage, shipping and deposit fees, in order to release the trophies.
However, the taxidermist never forwarded the funds to Canada Customs. In fact, the taxidermist kept the money and repeatedly lied to the three men about it. On several occasions the taxidermist stated that he had received the trophies and that they were on schedule to be delivered by October 2002. But when the trophies were delayed and the three men inquired as to the status, the taxidermist gave several excuses ranging from a snowstorm, to the death of an employee, to mix ups in his operations. On one occasion the taxidermist even went so far as to say that, “your hides are fine” and that they would be ready for shipment very shortly.
It wasn’t until February 2004, more than two years after the trophies had first arrived in Canada, that the taxidermist revealed that in fact he had actually never been in possession of the trophies. Upon further investigation, the three men discovered that Canada Customs had sent a notice in February 2002 to the taxidermist advising that the trophies would be forfeited to the Crown unless they were claimed within 30 days. Since the taxidermist never claimed the trophies, they were incinerated by the Crown in 2002.
The question facing the court was whether or not the three men had a valid claim against the taxidermist and if so, what was the value of their damages?
DECISION
Because the taxidermist did not appear at trial to defend his actions, the three men were successful in obtaining judgement against him. The challenge for the court then lay in determining what the value of their damages was, that is, how much the three men should be compensated?
The first principle of law used to determine the value of damages in situations where one party has suffered a wrong at the hands of another is what is the amount of money, to the extent that money can rectify a wrong, is needed to put a person in the same position had the wrong not occurred at all. This is followed by a second principle that the damages awarded must be reasonable to both the wrongdoer and the person being wronged. When the wrong results in loss or damage to a unique good or product, a third principle has also been applied, which is that the person who has been wronged is entitled to the subjective value of the loss they have incurred. The value of this loss is determined by the loss of market value, or alternatively, by determining the initial cost of acquiring the good, repairing the good or replacing the lost or damaged goods.
In this case, the three men were seeking the full replacement cost of what it would cost them to fly back to Zimbabwe and participate in another safari. Presuming the three men had an equally successful safari, this would put them in relatively the same position as they originally had been in, had the wrong not occurred at all. However, the court found that this was not reasonable, as part of the value to the hunters was participating in the safari itself, irregardless of how successful they were in shooting any animals. As such, the court ordered that each of the three men was entitled to recover one half of their travel and safari costs, but nothing for guns, clothing costs and meals. In addition, all of the costs incurred in crating and shipping their trophies was to be fully recovered. The three men were also awarded $17,402, which they had paid in trophy fees for the animals they shot, plus $3000 to each for mental distress, and $2500 to each in punitive damages, to punish the taxidermist for his blatant lies, his actions resulting in the loss of the trophies, and his conversion of the three men’s money.
All in all, at the end of the day, the three men received a significant damages award, which totalled $77,168.11 and would likely cover a significant portion, if not all, of a return trip to Africa for a second safari.
LESSONS LEARNED
- When going on an African hunting safari, be sure to hire a reputable taxidermist.
- Lying gets you nowhere, and may actually increase the amount of damages you owe.
This article was written by Robert G. Kuhn and Ian C. Moes, lawyers who practice in construction law at the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other construction law matters, please contact us at 604-864-8877.
