Going Beyond Summaries – Through the Eyes of a Wild Animal Case

Often adjusters make only limited use of previous court cases, merely looking at annotation
services or case summaries. While summaries may be a good starting point, they skip many of
the facts and much of the underlying logic. By looking at the full cases, both newer adjusters
and more experienced ones can see what facts made a difference, and how those facts interacted
with the applicable legal principles. One high profile court case from Ontario (Cowles v. Balac,
decided January 2005) provides a good reminder of this.

At first glance, Cowles simply is a case where a game park was found liable in strict liability
when somehow the windows on a car were opened and a couple tigers in the park attacked. Lots
of arguments for finding liability, right? Or is there more to the case than this?

Collecting Evidence and Assumptions:

If you start reading the case, you’ll first observe that there were a number of people to be
interviewed, and both the park and the claimant’s vehicle had to be inspected and photographed.
Investigation galore. Like a massive jigsaw puzzle, if you were assigned this claim to adjust,
there would be lots of work to do. And a number of small points were present which could either
make or break the investigation. The park had procedures in place, and arguably was laid-out
for safety. Were these procures followed and all reasonable steps taken? What about the nature
of tigers themselves? Some of the witnesses claimed to have heard comments made by the
claimants, but did everybody who was present at the same time hear the same comments?

One issue raised by the defence was a possible assumption of the risk created by opening the car
window. One witness who was present shortly after the attack claimed to have heard the male
claimant asking the female claimant why she had rolled down the window. A second witness
claimed to have talked to the female claimant and was told she had rolled down the window to
take photographs. A third witness claimed to have talked to the female claimant, who was
clearly in shock due to a loss of blood, and was told a story of having the window open for
taking photographs, rolling up the window on the tiger’s paw, and having the male claimant get
out his door and go around the car to get the tiger out of the car.

With all of those witnesses, do you think there would be enough evidence to show that the
claimants themselves voluntarily opened the windows and either assumed the risk or contributed
to the attack? The judge didn’t think so. What he pointed out, for two of the witnesses, was that
other people were present at the same time, just as close or closer, who did not hear the
comments. And third witnesses (the one who related the story of the male claimant getting out
of the car) thought that what he heard was pretty far fetched. The approach the judge took shows
why claims have to be fully investigated and all details considered.

Just because one witness, or even several witnesses, support your initial view of a claim, you
can’t assume that the question is answered. In this case, there were a number of other witnesses,
none of whom heard the statements even though they were also present. And the first park
employee on the scene testified to the setting, with some of that testimony not lining up with
some of the assumptions. There were also dents on the passenger side of the car. In the judge’s
mind, things just did not line up with having the claimant voluntarily open a window.

In all of the later questioning, the claimants were consistent in their statements that they did not
know how the windows came down. In addition to this, the female claimant said that she was
taking her pictures through a closed window, and heard banging on the side of the passenger side
of the car. And the car had electric windows. The judge’s ultimate feeling was that the windows
had initially been closed, that the claimants had stopped to take a picture, and that one of the
tigers must have substantially bumped the car several times, bumping it strongly enough to dent
the side. Somehow the car stalled, and in the panic of the moment, the male driver must have
accidentally bumped the buttons for the electric windows, rolling them down. So much for early
assumptions!

Legal Lessons:

The Cowles case had a number of interesting discussions, many of which would have been
missed by simply reading a brief summary. Some of these included:

1. Types of Liability (Scienter, Strict Liability, Negligence, and Occupiers Liability) as well
as defences to each of these (primarily contributory negligence and Consent / Assumption
of the Risk, but others are also reviewed)
2. Can No-Fault automobile benefits be subtracted?
3. Can provincial health care subrogate for incidents like this in automobiles?
4. Damages – both non-pecuniary and special damages for an incident with a number of
twists.

1. Types of Liability – Strict liability, scienter, standard negligence, and occupiers liability

This case provides a good overview of the various liability issues present, relates how those
apply to the facts present, and then how the defences available for the negligence type apply to
the facts present. For example:

• Scienter deals with harmless species, and an owner is only liable if aware of dangerous
propensities. A detailed description of the doctrine was provided. The bottom line was
that scienter did not apply to wild animals, only to domestic ones, since wild animals are,
by their nature, assumed to have dangerous propensities. The defences are contributory
negligence and consent / voluntary acceptance of the risk.

• Strict liability applies when dealing with dangerous animals. No question here in the
judge’s mind that tigers were dangerous animals. The judge felt that you could not have
contributory negligence as a defence if strict liability applied, but went on to hold that the
attack was unprovoked so there would not have been contributory negligence even if it
had been an available defence. The judge went on to discuss Consent / Voluntary
assumption of the risk as a defence, holding that it didn’t apply in this case. And the only
other possible defence, the Act of a Stranger, didn’t apply here.

• Negligence and Occupier’s Liability were lumped together in one discussion. The
 bottom line to the judge’s decision was that, even if Strict Liability did not apply, the
wildlife park here would have been negligent, and by implication, also liable under the
OLA. The judge went through the various factors present in their failure to meet the
required duty of care. The park was dealing with dangerous animals and simply did not
take the level of care which would have been reasonable under the circumstances.

2. Can No-Fault automobile benefits be subtracted?

Since this incident occurred in an automobile, and no-fault benefits were paid by the auto
insurer, the defendants asked to have the no-fault benefits subtracted from the amount payable.
The judge, in making his decision, looked at the insurance act that was in place when this
incident occurred. The insurance Act did not specifically allow for deduction of benefits for
unprotected defendants, and as a result the judge held the benefits paid could not be subtracted.
Also, both the basis of liability and the claim itself were not directly related to the use or
operation of a motor vehicle.

3. Can provincial health care subrogate for incidents like this in automobiles?

The judge held that, since the incident here did not result either directly or indirectly from use or
operation of a motor vehicle, the waiver of subrogation in the Ontario Health Care legislation did
not apply.

4. Damages

The damages discussion in this case was interesting because of the numerous twists. Things that
can be present in other claims, but normally are not all present at the same time. You had a
single-mom exotic dancer with extensive scarring and psychological problems, a male who was
far from the top of his class at a junior college who had a hard time getting a job afterwards due
to his physical injuries, and other twists. An interesting read - enough details for a whole series
of articles.

Recap:

As adjusters, we need to know the legal principles behind various situations we investigate.
Annotations and summaries can be a good starting point for understanding what is needed, but
they often don’t tell the full story, and there will always be full cases you can learn from. Cases
like Cowles, where judges have taken the time to set out the evidence present, the liability
analysis involved, and the logic behind the quantum awarded, are an excellent training ground
for the starting adjuster, and a good refresher for the old hands.