Library:
Case Comment: Cowles v. Balac - Ontario C.A., Docket C43131
Published in the November 2006 issue of Transportation Notes - View Article
The Ontario Court of Appeal has released its decision in the “flying tigers” litigation.
The case arises from a incident at the African Lion Safari (ALS) in Cambridge, Ontario. ALS is a “safari zoo” where patrons drive their cars through a park populated by wild animals.
In April 1996, the plaintiffs drove through the “Carnivore Section” of the park shortly after an ALS employee had removed a tiger cub from the area, departing in a truck that was similar in colour to the car belonging the plaintiffs.
Suddenly, PACA, a Bengal tiger, entered the plaintiffs’ automobile through the passenger side window, which had just been lowered. Two other tigers gained access to the car through the driver-side window immediately thereafter.
The three tigers proceeded to seriously maul the plaintiffs until an employee of ALS drove the tigers away from the car by circling it in an ALS truck.
The trial judge found for the plaintiffs on the well established principle in Ontario that those who keep dangerous animals are strictly liable for their actions.
The Court found, in any event, that an ALS employee who failed to properly monitor the plaintiffs’ car had breached the company’s guideline which required him to “keep cats away from visitors’ vehicles”.
The most contested issue at trial was how the windows were lowered in the first place permitting the tigers to attack. The plaintiffs testified that they did not know how the windows came down.
After hearing expert testimony on this issue, the trial judge concluded that when PACA first pounced at the car, the driver’s foot slipped off the clutch, causing the car to rock, which in turn caused the driver’s arm to trigger the power window controls, causing the windows to open, and thereby “allowing the tigers access to the passengers”.
This finding was made despite evidence that an ALS employee heard one plaintiff scold the other after the attack for opening the window to feed the tigers, another employee testified that the plaintiffs admitted they had the window open to take pictures of the tigers, the hospital records included an admission that the plaintiffs had opened the windows to take photographs and an insurance adjuster had a statement from an aunt who was told by a plaintiff that the windows were down to photograph the tigers.
On appeal, among other things, the defendants challenged the reasonableness of the finding made by the trial judge on how the windows opened and argued that, notwithstanding the fact that ALS was strictly liable in law, contributory negligence principles should apply in this instance.
Because the majority of the Court did not overturn the factual finding, they did not have to consider this issue.
In his dissent, however, Justice Borins was inclined to doubt the finding, and expressed his view that contributory negligence does apply to strict liability cases by drawing an analogy to the fact that if the incident had been completely the fault of the plaintiffs, they would not have been entitled to a recovery at all.
Nevertheless, the defendants appeal was dismissed by the majority on all grounds.