TEST OF ACCIDENT

Evening Post, Volume CX, Issue 70, 19 September 1930, Page 11

TEST OF ACCIDENT

AN INSURANCE PROBLEM

INTERESTING' JUDGMENT

Beservea judgment was delivered in the Supreme Court to-day by Mr. Justice Blair on a case.heard in June, involving consideration'of the question or' whether a shipping clerk,' Leslie Henry Charles Long, -whose shoulder was injured when he threw a tennis ball last Labour Day, was entitled.to relief under an insurance policy from . the Colonial Mutual Life Assurance Society, Ltd. His Honour found for the plaintiff with- costs as per scale. ■ The facts were that-on Labour Day Long threw back into the Clyde Quay School tennis courts a ballwhich had been hit out by children playing there. Ho immediately felt something "go" iv his shoulder, and later in the day suffered considerable . pain, - which sent hint to the hospital. The trouble Avas diagnosed as a severe sprain, in the shoulder and the plaintiff required treatment until the following March. He claimed £90 5s and costs from the insurance society. , . ■ _, The insurance . company, . said - his Honour, did not dispute that the plaintiff's injury was the result of an accident according to its colloquial meaning. It denied that plaintiff's accident was covered by the risks insured against by the policy. The policy in effect said that unless -the means which were the source of the injury satisfied four tests, no liability could arise under the clause of the policy upon which the plaintiff relied^ The 'four tests wore: that the "means" must be: (a) Accidental, (b) violent, (c) external, and (d) visible. "The injury to the plaintiff," said his Honour, '' was caused by the violence of the movements he made to his arm when throwing the ball, combined with his poise, at the moment of thrbw- t ing. Therefore the movements of the arm, plus the poise, were the 'means' which were the source of plaintiff's in--jury. These 'means'were clearly visible and were of sufficient violence to cause injury. It thus follows that two of the four tests —violence and-, visibility—were satisfied." . ... 1 As to the other two elements his Honour said that paraphrasing the words of Lord Justice Smith in the case, of Hainlyn v. Crown, Accidental Insurance Co., in 1893,. to the present ease, the means by which the injury to Long was caused were the picking up of the ball, the movement backward of the arm preparatory to and poised for throwing, followed by< the strong forward throw of the arm in delivering the ball. All those act's were external and visible. . . Were it not for the decision in Hamlyn's ease, which had remained unquestioned since 1893, he would have had some difficulty in treating Long's acci^ dent as due to an external and accidental cause. But to do otherwise., ho would -have to treat Hamlyn 's case as wrongly decided. . . The form of policy in that case was identical in effect with Long's policy, and it was not an unfair inference to make that when the defendant company issued its policy to Long its advisers knew of the decisibn and the extent of the liability it cast on companies using that form.;

Mr. D. E. Hoggard, who appeared .for the company, intimated the possibility of an appeal being made: against the decision.. • ■■-. ■..-..' ;. .■'■; ...-,-■: ;; -

His Honour said he would like to sec an appeal made; frankly, it was a difficult point. '

On Mr. Hoggard's application an order was made granting a stay of execution of the judgment for 14 days, and, if an appeal is to bo lodged, until after the case is disposed of. .

At the hearing Mr. J.. A. Sept.tap peareel for the plaintiff. ■ :