August 2007

Firm News:

• Rui Fernandes has been included in the 2008 Lexpert®/American Lawyer Guide to the Leading 500 Lawyers in Canada.
  
  
• Matt Mulholland joined the firm as an articling student in mid July. He will be with the firm for 10 months.

CASE COMMENTS

When is a Disease an "Accident"?

In a recent decision of the Ontario Court of Appeal, Kolbuc v. ACE INA Insurance, 2007 ONCA 364 the court had occasion to comment on what constitutes an "accident" for the purposes of insurance coverage.

The claimant, a plasterer, was bitten by a mosquito carrying the West Nile virus in 2002 and was rendered a paraplegic. At that time, while mosquito bites were common to a person in this occupation, there had been no reported cases of the West Nile virus in Ontario.

The Court of Appeal held that it was an unforeseen, unexpected event that was caused by an external source - a mosquito - and falls within the ordinary definition of an "accident". The cause of the illness was an accidental event. The plasterer had no reasonable expectation that he would get West Nile virus from the activity in which he was engaged.
In granting the claimant insurance coverage the Court stated: "The respondent submits that a disease is not an accident. That proposition standing alone is obviously correct. However, an accident can cause a disease. For example, if a sailor is shipwrecked at sea and develops an illness from exposure to the elements, his injury is caused by an accident. A shipwreck is a foreseeable but unexpected event and an external source that can trigger an illness."

The court held that an injury may be regarded as accidental where an insured engages in a voluntary act without intending to cause himself harm and the consequent harm could not reasonably have been foreseen or expected.

Rui Fernandes

Golf Can Be Dangerous!

The recent decision of the British Columbia Court of Appeal, Matharu v. Nam, 2007 BCCA 268 is an interesting "golf" case. Mr. Matharu was playing golf as a guest at the Quilchena Golf & Country Club when, while waiting at the 10th tee box, he was stuck in the eye by a golf ball. The ball came from a fairway shot of Mr. Nam who was on the 18th fairway which ran parallel and opposite to the direction of play of the 10th fairway.

The 10th hole plays south. The 18th hole plays north and is to the west of the 10th fairway. The 18th fairway curves to the right to the north of the 10th tee box. There is a row of trees, some deciduous and some evergreen, and a thick hedge between the 18th fairway and the 10th tee area.
Mr. Nam was playing his shot to the green, which was approximately 210 yards. He used a fairway wood and intended to clear two deciduous trees on the fairway. The trees were approximately 20 metres west of the hedge that protects the 10th tee box. Mr. Nam was a competent golfer with a handicap of eleven or twelve. He shoots straight with no tendency to hook or slice. He had made the shot on a number of previous occasions. Playing with Mr. Nam was his wife, who also was an experienced, competent golfer.

The shot was lower than Mr. Nam intended and he lost sight of it. The judge found that it went into the deciduous trees, ricocheted and was diverted in the direction of the 10th tee box where Mr. Matharu was standing. Neither Mr. Nam nor his wife, who was on the fairway and saw the ball go into the trees, called "fore". Mr. Matharu testified that if he were to hear "fore" he would lower his head and cover it with his arms and hands.

The trial judge dismissed the action against Mr. Nam and the golf course. In s doing he reviewed the issues. As to Mr. Nam, was he negligent in:

1. striking his ball in the direction of the tenth tee box;
2. failing to call 'fore' when he lost sight of this ball?

The judge reviewed the evidence of the witnesses and the documentary evidence as it pertained to the case against each defendant (Mr. Nam and the Golf Course). The witnesses included people who were playing on the course at the time of the incident, officials of the Golf Course and some experts. They addressed the events of the day, practice of golfers and golf courses and modifications made to the Quilchena course in the area of the tenth tee.

The judge summarized the standard of care for golfers as:

"Although there are some risks incidental in the game of golf, players must take care not to hit anyone because of the obvious danger of injury."

"A person about to strike a golf ball must consider the presence of other golfers in the way of the shot. This would include persons unseen, but likely to be present due to the configuration of the course. Here, the position of the tenth tee box in relation to the eighteenth fairway is a significant consideration, as it is a place on the course where golfers congregate to initiate play."

The judge made a number of findings of fact concerning the shot:

"• Mr. Nam struck the ball towards the 18th green on a line parallel to the hedge protecting the 10th tee; his line of flight was 20 meters to the west of the 10th tee box and he was not attempting to hit the ball over the tee box; (para. 77)

• he intended to hit the ball over trees on the 18th fairway; he had made the shot previously and had no reason to think he would fail to clear the trees; (para. 78)

• it was not reasonably foreseeable that the ball would hit a tree and deflect in the direction of people at the 10th tee box rather than simply fall to the ground; (para. 81)

• the possibility that if the ball were to deflect towards the 10th tee box it would maintain sufficient momentum to injure was extremely remote. (para. 81)"

Concerning the failure of Mr. Nam to call "fore" the judge held: "This was not a shot that veered off on an unintended course. There was no reason for Mr. Nam to call a warning immediately after taking this shot."

As to the standard of care to be applied to golf courses the judge stated that it was "to ensure that, in all the circumstances, a person will be reasonably safe using the premises."

In finding for the Golf Course the judge stated:

"I find that, as of the date of this incident, [the Golf Course] had taken reasonable steps to ensure the safety of golfers in the area of the tenth tee box. Professional advice was taken on the means by which play on the eighteenth fairway could be shifted away from the tenth tee. The changes included the planting of trees adjacent to and south of the tee box. This pushed the play further to the centre of the eighteenth fairway. The trees also form a barrier in the way of balls driven, whether errantly or purposely, in the direction of the tenth tee. A dense hedge was planted to protect players in the tee box.

I am not satisfied that the poplars that were removed offered greater protection than the trees and hedges in place as they stood at the date of the incident. Even if they did, it does not follow that the measures taken by [the Golf Course] did not meet the standard of care."

The Court of Appeal agreed with the trial judge's analysis and dismissed the case.

Rui Fernandes