AN "ACCIDENT"

Evening Post, Volume CX, Issue 139, 10 December 1930, Page 12

AN "ACCIDENT"

LEGAL DEFINITION

APPEAL COURT DECISION

AN IMPORTANT CASE

A case of considerable importance to insurance companies was decided by the Court of Appeal to-day. The respondent was Leslie Henry Charles Long, a shipping clerk, who injured his shoulder while picking up and throwing a tennis ball. The poiht at issue was whether Long was entitled under the terms .of an insurance policy to relief from the Colonial Mutual Life Assurance Society, Ltd. (the appellant). The Court held that* he was not. "The respondent's claim is well founded if the bodily injury which he suffered was caused solely and directly by accidental, violent, external, and visible means. The appellant's case is that the injury was not caused by accidental means," said his Honour Mr, Justice Kennedy in delivering the judgment of the Court. THE TERM CONSIDERED. "The term 'accident' has been considered in many cases but, as Cockbum C.J., delivering the judgment of the Court in Sinclair v. Maritime Passengers' Assurance Company, said, 'it is difficult to define the term "accident," as used in a policy of this nature, so as to draw with perfect accuracy a boundary line between injury or death from accident, and injury or death from natural causes; such as shall be of universal application. At the same time we think we riiay safely assume that, in the term "accident" as so used, some violence, casualty, or vis major, is necessarily involved. AYe cannot think disease produced by the action of a known cause can be considered as accidental. Thus disease or death, engendered by exposure to heat, cold, damp, the vicissitudes of climate, or atmospheric influences, cannot, wo think, properly be said to be accidental; unless at all events, the exposure is itself brought about by circumstances which may give it the character of accident.' An injury is not caused by accident when, it is the natural result of a natural cause. The question in. this case is not whether the injury was accidental in the sense that it was an unlooked for mishap or an untoward event, but, as Blair J. correctly states, whether the injury was caused by accidental means. DISTINCTION POINTED OUT. "This distinction, is pointed out by the Lord President in Clidero v. Scottish Insurance Company, Limited, where he says, 'The death being accidental in the sense in which I have mentioned, and the means which lead to the death as accidental, are to my mind two quite- different things. A person may do certain acts, the result of which acts may produce unforeseen conser quences, and may produce what is commonly called accidental death, but the means are exactly what the man intended to use, and did use, and was prepared to use. The means were not accidental, but the result might be accidental.' The means are not accidental where the cause comes into operation in the ordinary course of events and is calculated, in the usual experience of mankind, to produce the * result which is in fact produced. . . . "The respondent did not give evidence pointing to any involuntary, unforeseen, or unexpected movement. In this respect, the case resembles Clidero v. Scottish Accident Insurance Company, Limited. Sudden tension on a muscle is a known cause of disablement in shoulder joint injuries. From the statement that it was a fairly long throw, it may be taken that the injured man exerted some degree of force. It is said that ordinary movements of the body may produce ricks and sprains, and the medical testimony supporting the plaintiff's case coincided with the testimony of a witness for the defendant that the injury suffered is an exceedingly likely result from throwing a tennis ball. Upon this evidence we are not able to say that the result was one very unlikely to happen from the throwing of a light tennis ball, having regard to such force as was exerted by the respondent. The evidence does not warrant a conclusion that the injury was other than the natural result of the respondent's purely voluntary act. "The appeal is allowed, with costs on the lowest scale. Judgment will be entered in the Supreme Court for the appellant, with costs on the lowest scale, with witnesses' expenses and disbursements." At the hearing, Mr. D. E. Hoggard appeared for the appellant, Mr. J, Scott for Long.