Mutual of Omaha v. Stats, [1978] 2 SCR 1153

Supreme Court of Canada

Mutual of Omaha v. Stats, [1978] 2 S.C.R. 1153

Date: 1978-06-29

Mutual of Omaha Insurance Company (Defendant) Appellant;

and

Evelyn Isobel Stats (Plaintiff) Respondent.

1978: February 23, 24; 1978: June 29.

Present: Laskin C.J. and Martland, Spence, Pigeon and Estey JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Insurance—Accident insurance—Motor vehicle—Insured killed in accident—Insured driving while intoxicated—Blood alcohol level of 190 mg. per 100 ml. of blood—Whether death caused by “accident”—Definition of “accident”.

Plaintiff was the sister of the late Helen Kathleen Brown who died as a result of injuries received while driving a motor vehicle. Mrs. Brown was a member of the Canadian Automobile Association and as such became entitled to obtain from the appellant a Travel Accident Insurance Policy providing for the payment of $25,000 upon death. This policy provided for the payment in reference to an automobile accident “while driving, riding in, boarding or alighting from any private automobile” and the injuries insured against were defined as “accidental bodily injuries...”. Plaintiff was the named beneficiary.

Mrs. Brown had visited her sister in law in Toronto in the morning of Sunday, June 27, 1971, and remained there for about two hours. In that period she had coffee but no alcoholic drink and was described by her sister in law as being “perfectly alright”. At about 2 p.m. that same day, Mrs. Brown and her lady friend, Mrs. Craig, visited the Rennie residence, elsewhere in the city, and there nothing unusual was noticed about either Mrs. Brown or Mrs. Graig by either Mr. or Mrs. Rennie. When the two ladies were leaving Mrs. Brown was driving with Mrs. Craig as passenger. Mrs. Brown in reversing out of the driveway struck the car of a Mr. Green damaging neither car. Mr. Green heard the noise and came to see what had happened. Mrs. Brown said that she was having difficulty with her car and could not start it. Mr. Green started it for her and found it in good order. He thought however that Mrs. Brown seemed a little vague and disorganised, perhaps because of touching his car. Mrs. Brown however indicated that she was alright and declined Mr. Green’s offer to drive her car to wherever she was going. On entering the car Mrs. Brown proceeded past a stop sign without coming to a stop and steadily accelerating. Her driving was wildly

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erratic. She proceeded straight across Yonge Street and the car struck at speed a brick building, killing both occupants. An autopsy on Mrs. Brown showed a blood alcohol level of 190 mg. of alcohol per 100 millilitres of blood and urine alcohol level of 270 mg. of alcohol per 100 millilitres. Upon this evidence the appellant company refused to pay the claim to the named beneficiary. The trial judge found that Mrs. Brown had been grossly impaired at the time of her death and that she had voluntarily undertaken to drive knowing herself to be impaired, in effect that her death was the result of her own actions. The Court of Appeal however reversed and held unanimously that the circumstances did come within the term “accident” and the injuries were accidental.

Held (Martland J. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Spence, Pigeon and Estey JJ.: While there are several dictionary definitions of “accident”, the definitions of an accident in Canadian Indemnity Company v. Walkem Machinery & Equipment Ltd. et al., [1976] 1 S.C.R. 309, and in Fenton v. Thorley & Co. Limited, [1903] A.C. 443, bring within the term those accidents or situations which result from the negligence of the actor whose acts are being considered even if the negligence were gross. Only if the actor realized the danger and, deliberately assumed the risk could the results not be construed as accidental. Such an analysis does not apply in the present case.

Per Martland J. (dissenting): The policy in question was not a liability indemnity policy but a policy to cover the insured in respect of injuries through accident. It was not necessary for the appellant insurer to prove here that Mrs. Brown deliberately drove her car into the building in order to establish that the occurrence was not accident. The important point is not that she was negligent in the driving of her car, but that, having rendered herself incapable to drive, she deliberately determined so to do when she had to know that it would or could cause foreseeable harm. If a person voluntarily embarks upon a foolhardy venture it cannot be said that, when foreseeable personal injury occurs, it is an accident.

[Canadian Indemnity Company v. Walkem Machinery & Equipment Limited et al., [1976] 1 S.C.R.

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309; Fenton v. Thorley & Co. Limited, [1903] A.C. 443 applied; Candler v. London & Lancashire Guarantee & Accident Co. of Canada et al., [1963] 2 O.R. 547 distinguished.]

APPEAL from a judgment of the Court of Appeal for Ontario reversing a judgment of Lerner J. at trial dismissing an action to recover $25,000 under an automobile Travel Accident Insurance Policy. Appeal dismissed, Martland J. dissenting.

D.K. Laidlaw, Q.C., and Burton Tait, for the appellant.

Douglas W. Goudie, Q.C., for the respondent.

The judgment of Laskin C.J. and Spence, Pigeon and Estey JJ. was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on November 1, 1976. By that judgment, the said Court of Appeal allowed an appeal from the judgment of Mr. Justice Lerner pronounced on January 10, 1975. In the latter judgment, Mr. Justice Lerner had dismissed the plaintiff Stats’ action and the Court of Appeal reversing that judgment allowed the plaintiff to recover $25,000 plus interest.

The plaintiff was the sister of the late Helen Kathleen Brown. Kathleen Brown was a member of the Canadian Automobile Association by virtue of her membership in the Ontario Motor League Kingston Club. As such, she became entitled to obtain from the appellant a Travel Accident Insurance Policy providing for the payment of $25,000 upon death which policy was offered exclusively for members of the Canadian Automobile Association. The policy provided for the payment in reference to an accident connected with an automobile in the following words:

3. Automobile and Pedestrian. (a) while driving, riding in, boarding or alighting from any private passenger automobile or (b) by being struck while a pedestrian by any motor vehicle ordinarily operated on the public streets and highways. A “private passenger automobile” means an automobile not licensed to carry passengers for hire and which is of the pleasure type (including a truck with a factory rating load capacity of one thou-

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sand five hundred pounds or less).

The injuries insured against were defined in the said policy as follows:

“Injuries” means accidental bodily injuries received while the Insured is insured under the policy which result in covered loss independently of sickness and all other causes, provided such injuries are sustained:

The respondent Evelyn Isobel Stats was the named beneficiary in the said insurance policy.

This appeal must be determined by consideration of whether the death of the said Helen Kathleen Brown occurred from “accidental bodily injuries received while the insured... was driving any private passenger automobile”. This entails a rather detailed consideration of the evidence adduced at the trial.

On Sunday, June 27, 1971, at about 9.00 a.m., the late Helen Kathleen Brown arrived at the home of Doris Macklam in Downsview in the Jane and Bloor Streets area of Metropolitan Toronto. The late Helen Kathleen Brown then lived in the O’Connor Drive area of Metropolitan Toronto. Mrs. Macklam was the wife of Helen Kathleen Brown’s brother. The late Helen Kathleen Brown stayed at Mrs. Macklam’s home for about “a couple of hours” until some time between 11.15 and 11.30 a.m. During that period, she consumed a cup of coffee and no alcoholic beverages. Mrs. Macklam described the late Helen Kathleen Brown as “she was perfectly alright. The same as usual”. In cross-examination, Mrs. Macklam said the late Helen Kathleen Brown did drink but she (Mrs. Macklam) did not know if Helen Kathleen Brown drank excessively or not.

The next witness to trace the course and conduct of the late Helen Kathleen Brown on that day was Mrs. Mabelle Gertrude Rennie. Mrs. Rennie resides on Craighurst Avenue in the northern part of the City of Toronto. The transcript of the evidence contains the following question and answer:

Q. Your house is where?

A. 18 Craighurst.

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It is very evident that that is a reporter’s error, as the house numbered 18 Craighurst would be on the north side of Craighurst and very close to Yonge Street while the house in which Mrs. Rennie resides with her husband was, from the evidence of both her husband and Mr. Green, whose evidence shall be dealt with hereafter, on the south side of Craighurst and a block and a half west of Yonge Street.

Mrs. Rennie was an acquaintance of the late Helen Kathleen Brown and according to her evidence the late Helen Kathleen Brown had been once before in her home on Craighurst Avenue although she had not driven there. According to the evidence of her husband, Andrew R. Rennie, Mr. and Mrs. Rennie had visited the late Mrs. Brown’s home “maybe twice”.

When the late Helen Kathleen Brown arrived at the Rennie residence, she had accompanying her in the car Margaret Isobel Craig, who was Mrs. Rennie’s twin sister; and, of course, the purpose of the visit was to allow the twin sisters to be together and, it would seem, to compare Mrs. Rennie’s dog with the late Mrs. Craig’s newly acquired small dog.

When the two ladies arrived at the Rennie residence at about 2.00 or 2.15 p.m. on Sunday, they visited with Mrs. Rennie inside the Rennie residence. Mr. Rennie was in the back garden repairing flagstones on the patio. During the time when the late Mrs. Brown and the late Mrs. Craig were at the Rennie residence, they did not have refreshments of any kind although they were offered tea or coffee. Mrs. Rennie made no observation of anything unusual about Mrs. Brown nor about her sister, the late Mrs. Craig. When they were about to leave at about 2.45 or 2.50 p.m., the late Mrs. Craig stated she wished to greet Mr. Rennie and the three ladies then went into the garden to the rear of the Rennie residence, greeted Mr. Rennie and then departed through the garage to the front of the Rennie residence where the late Mrs. Brown’s car stood on the driveway. Mrs. Rennie then returned to the doorway or just inside the doorway while the two ladies entered the car with the late Mrs. Brown driving and the late Mrs. Craig as passenger.

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Mr. John A. Green was visiting his father at the latter’s home at 98 Craighurst, which is on the north side of Craighurst Avenue, about fifty yards west of Duplex Avenue. John A. Green had parked his car on the north side of Craighurst facing west in front of his father’s home. Mrs. Brown put her automobile in reverse and backed out of the driveway. John Green heard a noise and came out to find that Mrs. Brown’s car was stopped actually in contact with the rear of Mr. Green’s car and was facing southeast. Mr. Green testified that his car was on the north curb perhaps twenty-five feet west of the entrance to the driveway at the Rennie home. It is, therefore, very apparent that the late Mrs. Brown’s manœuvre was to back her car out of the Rennie driveway and as she reached Craighurst directed the rear of her car somewhat to the west so that she might go forward and proceed easterly on Craighurst. As Mr. Green testified, the contact between the two automobiles was so slight that neither was damaged. However, the late Mrs. Brown stated to Mr. Green that she was having difficulty with her car and could not start it. Mr. Green offered to and did step into the driver’s side of the Brown car, started her car, moved the car forward easterly on Craighurst about fifty yards, almost to Duplex Avenue, and then backed it up to in front of the Rennie residence. He found the car in good mechanical condition and so informed the late Mrs. Brown. He observed that the late Mrs. Brown “seemed to be a little vague and disorganized and I thought maybe it was because of the touching of my car, something of that nature”.

Mr. Green testified that he asked Mrs. Brown three times if she were feeling alright and offered to drive her car to wherever she was going. The late Mrs. Brown replied that “she was alright, she was fine, no problem”. Mrs. Brown entered the automobile, started it and proceeded easterly on Craighurst to Duplex. Duplex Avenue is a north-south through street running one block west of Yonge Street. There is no doubt, on Mr. Green’s evidence, if any evidence were necessary, that there is a stop sign for traffic on Craighurst but Mrs. Brown proceeded right across Duplex Avenue, said to be a busy street, without coming to

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a stop and, in fact, with her speed steadily accelerating. Mr. Green stood looking westward and observing the whole drama. After crossing Duplex Avenue, the late Mrs. Brown’s driving became wildly erratic. Her car collided in a brushing motion with the south curb and further east mounted the north curb. She narrowly missed a hydrant and at least one utility pole and several parked cars and, having travelled the full block from Duplex to Yonge, which was said to contain about twenty-five houses, the late Mrs. Brown entered the intersection of Craighurst Avenue and Yonge Street.

Yonge Street is the main street in the City of Toronto and, on a summer Sunday afternoon, would be expected to have wellnigh a continuous line of traffic. Traffic on Craighurst Avenue is stopped by a stop sign at its intersection with Yonge Street but the late Mrs. Brown failed to stop and drove into Yonge Street at an estimated speed of fifty miles an hour. By some miracle, she proceeded straight across Yonge Street east bound without colliding with any traffic. Craighurst Avenue does not continue east of Yonge Street and a brick building faced Craighurst standing on the east side of a broad sidewalk. The late Mrs. Brown’s vehicle proceeded across that sidewalk and hammered into the brick building with such an impact as to drive the front of her car inside the building and collapse the whole of the front of her automobile. Both Mrs. Brown and Mrs. Craig were killed instantly.

An autopsy was performed on the late Mrs. Brown’s body. Samples of blood and urine were taken and at the trial of this action the evidence was adduced which demonstrated, the learned trial judge thought conclusively, and I agree with him, that the late Mrs. Brown’s blood contained 190 milligrams of alcohol per 100 millilitres of blood and her urine 270 milligrams of alcohol per 100 millilitres. Such an alcohol test, in the opinion of the learned trial judge, with which I agree, could only indicate that the late Mrs. Brown, at the time of her death, was grossly impaired. Upon this evidence, the appellant insurance company refused to pay the claim by the named beneficiary, the respondent, and this action resulted.

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Although the defences considered by the courts below were two-fold, firstly, that the death of the late Mrs. Brown was not within the coverage of the insurance policy, and, secondly, that even if it were it occurred while the late Mrs. Brown was committing a crime, that is, driving an automobile while impaired or, at any rate, with more than.08 milligrams of alcohol in her blood contrary to ss. 234 and 236 of the Criminal Code, at the opening of the argument on appeal, counsel for the appellant, the insurance company, stated that he intended to confine his appeal only to the first ground. Therefore, we have to determine whether, under the circumstances which I have outlined in such detail, the injuries resulting in the death were “accidental bodily injuries received... while driving... in a private automobile”. The injuries were received while driving a private automobile. Were they accidental? The learned trial judge, after careful investigation of the evidence and of the authorities, held:

The unfortunate deceased woman had to know that a mishap, misfortune or casualty of some kind was a probable consequence if she drove while so impaired and in the manner described. The accelerating speed, erratic weaving from side to side and failing to obey stop signs are indices of her incapability to drive a motor vehicle. Some form of collision with personal injuries to her as the driver was not only probable but inevitable. She voluntarily undertook to drive while in her impaired condition and when she had to know that it would or could cause her foreseeable harm.

Her death was a direct consequence of deliberately driving her motor car in the circumstances described supra directly into the store building without slackening speed. It was not because of the intervention of any fortuitous circumstance. Put another way, the proximate cause of the collision was her self-induced impairment, her actions and manner of driving.

However, it was the unanimous opinion of the Court of Appeal that the circumstances did come within the term accident and that the injuries were “accidental”.

Blair J.A., giving judgment, with which both other members of the Court agreed in their reasons, said:

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There is every justification for his description of her conduct as dangerous and grossly negligent and for his view that, in terms of the foreseeability of the reasonable man, she was greatly at fault. This is far different from finding that the insured actually and voluntarily “looked for” or “courted” the risk of the collision that killed her. The evidence in this case does not support such a finding. Accordingly, in my opinion, the collision must be regarded as an accident and her death as resulting from “accidental bodily injuries” within the meaning of the policy.

It will be seen that the learned trial judge in the portion of his reasons which I have quoted stated that the deceased woman “voluntarily undertook to drive while in her impaired condition” and subsequently referred to the deceased “deliberately driving her motor car”.

The learned trial judge had dealt with the evidence which I have outlined above and concluded:

Notwithstanding the evidence called by the plaintiff as to the deceased’s condition prior to the collision, I have no difficulty in finding on the balance of probabilities that the deceased was grossly intoxicated at the time of the collision and impaired to such an extent as to be incapable of driving a motor vehicle. It follows logically, and I so find, that the collision was the result of her grossly impaired condition.

In my opinion and, it would seem, that Blair J.A. was of the same view, that statement constitutes a finding as to the deceased woman’s condition when she drove her automobile eastward on Craighurst Avenue to the scene of the fatal accident but does not constitute any finding as to the credibility of the evidence of the witnesses Mrs. Macklam, Mrs. Rennie, Mr. Rennie or Mr. Green and those were the only witnesses who gave evidence in reference to the deceased’s apparent condition on the day of the accident. Not one of them gave the slightest indication that they believed the deceased woman was impaired. Until the slight impact between her automobile and Mr. Green’s automobile, her condition seemed to be perfectly natural and ordinary. After that slight impact, for the first time does a witness make any observation of any different condition and then I repeat and emphasize the words of Mr. Green “she seemed a little vague and

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disorganized and I thought maybe it was because of the touching of my car, something of that nature”.

Therefore, I am in agreement with Blair J.A. when, in giving reasons, he said that there was every justification for the learned trial judge’s description of the deceased woman’s conduct as dangerous and grossly negligent but that that was far different from finding that the insured actually and voluntarily “looked for” or “courted” the risk of the collision that killed her.

At some time on that Sunday, the late Mrs. Brown must have consumed what the technician estimated was about five pint bottles of beer or seven and a half ounces of alcohol but on the only evidence before the Court and evidence which the learned trial judge did not expressly disbelieve, she gave no appearance of impairment, and surely Mr. Green’s observation was most accurate. The impairment which, of course, must have existed, had not been plain to either the other witnesses or the late Mrs. Brown herself and the slight impact between her automobile and Mr. Green’s automobile must have caused that impairment to surge up so that in the very few moments between the impact and the time of her death all the impairment which had previously existed became active and in truth seemed to deprive the late Mrs. Brown of any intelligence or judgment whatsoever. So in the light of those circumstances and in the light of that situation, was the collision between the late Mrs. Brown’s automobile and that building on the east side of Yonge Street an accident?

The word “accident” found in an insurance policy is to be given its ordinary and popular meaning. There is no technical definition of “accident” to be applied. There is a mass of authority for that proposition but I need only cite Canadian Indemnity Company v. Walkem Machinery & Equipment Ltd. et al.[1], per Pigeon J., at pp. 315-316.

The appellant insurance company offered policies of this type to all members of the Canadian Automobile Association and yet chose to use the broadest of words to describe the loss insured against, i.e., “accidental bodily injuries received

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while the insured... was driving in a private passenger automobile”. If the appellant had desired to limit the very broad words “accident” or “accidental” then the appellant could have done so and many other policies do contain a much narrower description. It should be noted that the exclusions in the policy in question were only as follows:

                                                              EXCEPTIONS

Part D.

The policy does not cover:

(1) suicide or any attempt thereat, sane or insane,

(2) loss caused by act of declared or undeclared war, or

(3) injuries received while the insured or dependent is participating in any maneuvers or training exercises of the Armed Forces.

Counsel for the appellant in this Court emphasized the fact that the policy in question in this action was a pure accident policy and was in no way an indemnity policy and submitted that decisions as to what would constitute an accident covered by an indemnity policy were immaterial to the question of what would constitute an accident covered by an accident policy. Counsel submitted that the distinction between the two kinds of policies was that there could be no liability against which the insured required indemnification unless there was negligence involved, liability being based on negligence or deliberate action, while an accident within an accident policy could, and he submitted should, occur without negligence. I am unable to accept this submission. The insured in both an accident policy and an indemnity policy seeks cushioning against results of a risk. In an accident policy, he seeks a monetary sum which will cushion the expense caused by injury to himself. In an indemnity policy, he seeks cushioning against a liability to pay the costs of injury to others. Surely the word “accident” must be, apart from specific definitions in specific policies, similarly interpreted in both policies.

A variety of dictionary definitions have been attempted and text writers have used very astute

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and logical analyses of what would constitute an accident, but remembering that it is an ordinary word to be interpreted in the ordinary language of the people, I ask myself what word would any one of the witnesses of this occurrence use in describing the occurrence. Inevitably, they would have used the word “accident”. I am ready to agree that one has to have a knowledge of all the circumstances before one’s use of the ordinary language can have a determinative effect but even with all the knowledge of the circumstances which I have outlined in such detail, the ordinary person would still use the word “accident”. Pigeon J., in Canadian Indemnity Company v. Walkem Machinery & Equipment, supra, adopted Halsbury’s words, “any unlooked for mishap or occurrence”, and in Fenton v. Thorley & Co. Limited[2], Lord Macnaghten said at p. 448:

. . . the expression “accident” is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed.

These two definitions would bring within the term “accident” those which result from the negligence of the actor whose acts are being considered even if that negligence were gross. With this view, I agree for the reason that to exclude from the word “accident” any act which involved negligence would be to exclude the very largest proportions of the risks insured against. The word “accident” was held not to include such situations as occurred in Candler v. London & Lancashire Guarantee & Accident Co. of Canada et al.[3], a decision of Grant J., where an insured, to show his nerve to a friend, walked out to the patio of his thirteenth floor hotel suite, which was surrounded by a three foot brick railing one foot wide, and then performed certain manœuvres on that brick railing in the course of which he lost his balance and fell. The words of the policy to be interpreted in that case were “loss resulting directly and independently of all other causes from bodily injuries caused solely by accidental means”. Grant J. said, at pp. 560-61:

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Even though Candler’s acts were grossly negligent such fact would not of itself exclude recovery under the policy in the absence of such an exception. As to whether death occurred by “accident” or by “accidental means” is determined rather by the foreseeability of the result naturally following the deceased’s actions. If the fall from the coping was not an unusual or unexpected incident associated with the deceased’s actions, it cannot be termed as occurring by accidental means. There can be no doubt that Candler was quite aware of the danger of falling, particularly when he placed his body at right angles across the coping and with his hips and feet extending out into space. The purpose of his action was to show his friend that he had sufficient nerve to take the risk of falling that was obviously associated with his actions.

and continued:

Here, although Candler hoped and probably believed that he could accomplish the attempted feat without injury and to that extent the result was unintended, still there was present in his mind the risk involved because it was by such act that he was attempting to persuade his friend that he still had nerve.

As Blair J.A. points out in the portions of his reasons which I have already cited, the evidence in this case does not support a similar finding. There is, therefore, no need at this time to express the view of this Court as to Candler v. London & Lancashire Guarantee & Accident Co. of Canada et al., supra.

Negligence is a finding made whereby the conduct of a person is judged by the concept of a reasonable man under certain circumstances. A person may be found to have been negligent or even grossly negligent but at the time that that person performed the acts in question he might never have thought himself to be negligent. If, on the other hand, the person realized the danger of his actions and deliberately assumed the risk of it then in Grant J.’s view his actions could not be characterized as accidental. I agree with the Court of Appeal that such analysis does not apply to the circumstances in this case and I agree, therefore, with the view of the Court of Appeal that this occurrence was an “accident” within the words of this policy.

I would dismiss the appeal with costs throughout.

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MARTLAND J. (dissenting)—The respondent’s claim is as beneficiary for the proceeds of an accident insurance policy issued by the appellant with respect to Helen Kathleen Brown, deceased, hereinafter referred to as “Mrs. Brown”. The coverage provided was in the amount of $25,000. The policy defines “injuries”, for which coverage is provided, as follows:

“injuries” means accidental bodily injuries received while the insured is insured under the policy which result in covered loss independently of sickness and all other causes, . . .

On Sunday, June 27, 1971, Mrs. Brown accompanied a friend, Mrs. Isabel Craig, on a visit to the residence of Mrs. Craig’s sister on Craighurst Avenue in the City of Toronto. After a half‑hour visit Mrs. Brown and her friend re-entered her automobile. In backing it up Mrs. Brown inexplicably caused the automobile to collide with another automobile parked on the north side of Craighurst Avenue. There was no traffic and there were no other parked cars in the vicinity at the time. The collision did not cause damage to either vehicle, but Mrs. Brown was unable to restart her automobile.

The owner of the other automobile, Mr. John Green, arrived at the scene of the collision and Mrs. Brown explained her difficulty. At his suggestion Mr. Green entered her automobile, started it, with no problem at all, drove the automobile forward a distance of about fifty yards, stopped it and then backed it up to where Mrs. Brown was standing. He was satisfied that the car was in good mechanical order.

In conversation with Mrs. Brown, Mr. Green concluded that she seemed a little vague and disorganized. He asked her three times if she was feeling alright and offered to drive her automobile to any place that she was going. Mrs. Brown declined the invitation.

Mrs. Brown then re-entered the car, along with her companion, and drove it eastward on Craighurst Avenue. She failed to stop the car at the stop sign at Duplex Avenue. As the car crossed Duplex Avenue it swerved so that it went over the curb on the south side of Craighurst Avenue, barely miss-

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ing another car. It then swerved over to the north side of Craighurst Avenue and weaved down the street missing other parked cars and lamp posts. At one point it jumped the curb on the north side of the street. Throughout, the car was gradually accelerating until it reached the intersection of Craighurst Avenue and Yonge Street where the car failed to stop for a stop sign and proceeded across Yonge Street mounting the curb on the east side of Yonge Street and colliding with the wall of a building. It is estimated that the speed of the car eventually reached fifty miles per hour. Its speed had not been reduced up to the time of the collision. Mrs. Brown and her passenger died in the wreckage of the car.

Tests performed at the Centre for Forensic Sciences in Toronto demonstrated that at the time of death Mrs. Brown’s blood contained 190 milligrams percent alcohol and her urine contained 270 milligrams percent alcohol.

The learned trial judge made the following findings:

I have no difficulty in finding on the balance of probabilities that the deceased was grossly intoxicated at the time of the collision and impaired to such an extent as to be incapable of driving a motor vehicle. It follows logically, and I so find, that the collision was the result of her grossly impaired condition.

. . .

When the deceased undertook to drive her motor vehicle along Craighurst Avenue to Yonge Street while grossly impaired by the consumption of alcoholic beverages, she was acting in a grossly dangerous, negligent manner. The collision that occurred in the short period of time and over the short distance from where the car started after striking Green’s car cannot be described as an unusual or unexpected incident or circumstance associated, as it was, with her excessive consumption of alcohol.

The unfortunate deceased woman had to know that a mishap, misfortune or casualty of some kind was a probable consequence if she drove while so impaired and in the manner described. The accelerating speed, erratic weaving from side to side and failing to obey stop signs are indices of her incapability to drive a motor vehicle. Some form of collision with personal injuries to her as the driver was not only probable but inevitable. She

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voluntarily undertook to drive while in her impaired condition and when she had to know that it would or could cause her foreseeable harm.

Her death was a direct consequence of deliberately driving her motor car in the circumstances described supra directly into the store building without slackening speed. It was not because of the intervention of any fortuitous circumstance. Put another way, the proximate cause of the collision was her self-induced impairment, her actions and manner of driving.

He dismissed the respondent’s claim. On appeal this judgment was reversed by the Court of Appeal for Ontario. The present appeal was brought, with leave, to this Court.

The learned trial judge cited a number of definitions of the word “accident” including that which is contained in Halsbury’s Laws of England, 3rd. ed., vol. 22, p. 293, para. 585, which appears under the heading “Policies Insuring against Injury by Accident” and which reads as follows:

The event insured against may be indicated in the policy solely by reference to the phrase ‘injury by accident’ or the equivalent phrase ‘accidental injury’ or it may be indicated as ‘injury caused by or resulting from an accident’. The word accident (or its adjective accidental) is no doubt used with the intention of excluding the operation of natural causes such as old age, congenital or insidious disease, or the natural progression of some constitutional physical or mental defect; but the ambit of what is included by the word is not entirely clear. It has been said that what is postulated is the intervention of some cause which is brought into operation by chance so as to be fairly describable as fortuitous. The idea of something haphazard is not, however, necessarily inherent in the word; it covers any unlooked for mishap or an untoward event which is not expected or designed, or any unexpected personal injury resulting from any unlooked for mishap or occurrence. The test of what is unexpected is whether the ordinary reasonable man would not have expected the occurrence, it being irrelevant that a person with expert knowledge, for example of medicine, would have regarded it as inevitable. The standpoint is that of the victim, so that even wilful murder may be accidental, so far as the victim is concerned.

He cited, with approval, the judgment of Grant, J. in Candler v. London & Lancashire Guarantee

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& Accident Co. of Canada et al.[4] In that case the claim was made under an insurance policy covering death “resulting directly and independently of all other causes from bodily injuries caused solely by accidental means”. The insured, to show his nerve to a friend, walked out to the patio of his 13th floor hotel suite, which had a brick wall, three feet high and one foot wide around it. He sat on the wall with his feet drawn up and with no protection to his back. He then balanced himself on the wall on his stomach, with his feet extended out into space. He slipped backward, lost his hold on the wall and fell to his death.

Grant, J. dismissed the claim. Among the authorities which he cited was Allred v. Prudential Insurance Co. of America[5], which involved an insurance policy insuring against death as a result “directly and independently of all other causes, of bodily injury effected solely through external, violent and accidental means”. The insured lay down parallel with the centre line, on a highway, despite warnings as to the danger of an approaching car. He was struck and killed.

The claim under the policy was dismissed because death occurred as a result of the voluntary act of the insured. It was “a natural and probable consequence of an ordinary act in which he voluntarily engaged”.

The policy in the present case contains a similar exception to that contained in the policy involved in that case in the words “independently of sickness and all other causes”.

After his reference to the Allred case, Grant, J. went on to say:

Even though Candler’s acts were grossly negligent such fact would not of itself exclude recovery under the policy in the absence of such an exception. As to whether death occurred by “accident” or by “accidental means” is determined rather by the foreseeability of the result naturally following the deceased’s actions. If the fall from the coping was not an unusual or unexpected incident associated with the deceased’s actions, it cannot be termed as occurring by accidental means. There can

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be no doubt that Candler was quite aware of the danger of falling, particularly when he placed his body at right angles across the coping and with his hips and feet extending out into space.

He also said:

Once the deceased engaged in the dangerous exercise above described, from which one of the natural and probable consequences might well be a fall to the ground below, even though he felt he could accomplish the fact without falling, it must be taken that the mishap was not accidental or caused by accidental means unless there was some other unusual or unexpected occurrence in addition to the voluntary act of the deceased and which could not be reasonably foreseen and which produced the fall, before it can be classed as accidental. Here there was no other element besides the deceased’s own act which brought about the result or contributed to his death. The nature of the deceased’s acts which brought about the fall and the circumstances under which such acts were performed are the determining facts in deciding whether the result was accidental or not. Here, although Candler hoped and probably believed that he could accomplish the attempted feat without injury and to that extent the result was unintended, still there was present in his mind the risk involved because it was by such act that he was attempting to persuade his friend that he still had nerve.

In my opinion the reasoning of Grant J., with which I agree, applies to the facts of the present case. It must be remembered that, not only was the deceased grossly intoxicated, but, also, she had been made aware of her incapacity to drive, and had refused the offer of Green to drive her wherever she wished to go. Nonetheless, she deliberately elected to drive her car when, as the learned trial judge says “she had to know that it would or could cause her foreseeable harm”.

This Court had to consider the meaning of the word “accident” in Canadian Indemnity Company v. Walkem Machinery & Equipment Ltd[6], but in that case the word was used in a comprehensive business liability policy. The coverage provided included:

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Damage to Property of Others—All sums resulting from the liability imposed by law upon the Insured for damage to or destruction of property of others of any or every description, including the loss of use thereof, caused solely and directly by an accident...

By reason of the negligence of the insured in repairing a logging crane installed on a barge, the crane collapsed, causing damage to the barge owner. The barge owner obtained judgment against the insured for the amount of his loss. The insured claimed indemnity under the policy. The insurer resisted the claim on the ground that the collapse of the crane was not an accident because it resulted from a high degree of negligence on the part of the insured. All of the courts which dealt with this matter, including this Court, held that the collapse of the crane was an accident.

The appellant in that case relied on the judgment of the Manitoba Court of Appeal in Marshall Wells of Canada Ltd. v. Winnipeg Supply and Fuel Company Limited[7], in which case Canadian General Insurance Company was a third party by reason of a claim against it under a liability insurance policy. The insurance company succeeded in its defence that what had occurred was not an “accident” within the meaning of the policy because it was not an unanticipated mishap.

In his reasons for judgment for the majority, Guy J.A., cited at p. 669 a portion from the passage from Halsbury which I have previously quoted, relying upon the statement that: “The test of what is unexpected is whether the ordinary reasonable man would not have expected the occurrence”.

In the Walkem case, Mr. Justice Pigeon, who delivered the reasons of the majority, took exception to this test as applied to a comprehensive business liability insurance policy. He said, at p. 315:

With respect, this is a wholly erroneous view of the meaning of the word “accident” in a comprehensive business liability insurance policy. On that basis, the insured would be denied recovery if the occurrence is the

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result of a calculated risk or of a dangerous operation. Such a construction of the word “accident” is contrary to the very principle of insurance which is to protect against mishaps, risks and dangers. While it is true that the word “accident” is sometimes used to describe unanticipated or unavoidable occurrences, no dictionary need be cited to show that in every day use, the word is applied as Halsbury says in the passage above quoted, to any unlooked for mishap or occurrence. That this is the proper test rather than the words italicized by Guy J. is apparent from a reading of the two cases on which that passage is based. These are Fenton v. Thorley & Co. Ltd. ([1903] A.C. 443) and Clover, Clayton & Co. Ltd. v. Hughes ([1910]) A.C. 242).

The policy presently under consideration is not a liability indemnity policy, but a policy to cover the insured in respect of his own injuries through accident. In the Walkem case the collapse of the crane, which gave rise to the liability claim, was certainly an accident, insofar as the barge owner was concerned and the policy indemnified the insured against liability for property damage caused by the accident. Furthermore, to exclude the insured from indemnity in respect of the claim against him arising out of that accident because of his negligence would be to render the policy valueless, because, absent negligence, there would be no liability in the first place.

As I have previously noted the passage from Halsbury cited by Guy J.A., was dealing with the meaning of the word “accident” in a personal accident insurance policy and not with its meaning in the coverage provided by a business liability policy. The relevant portion of the passage reads:

...it covers any unlooked for mishap or an untoward event which is not expected or designed, or any unexpected personal injury resulting from any unlooked for mishap or occurrence. The test of what is unexpected is whether the ordinary reasonable man would not have expected the occurrence.

[The emphasis is mine.]

If this test were to be applied in the present case it is my opinion that, in the light of the findings of the trial judge, his conclusion that what happened in the present case was not an accident was cor-

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rect. On the evidence a reasonable man would have expected the occurrence.

In the Walkem case approval was expressed in this Court for the view of Freedman J.A. (as he then was) in dissent in the Marshall Wells case, at p. 664, where he said:

With respect, I am of the view that what occurred here was an accident. One must avoid the danger of construing that term as if it were equivalent to «inevitable accident». That a mishap might have been avoided by the exercise of greater care and diligence does not automatically take it out of the range of accident. Expressed another way, «negligence» and «accident» as here used are not mutually exclusive terms. They may co-exist.

His basic proposition is that a mishap may be an accident even though it might have been prevented by the exercise of greater care and diligence. Applied to the type of policy being considered in the present case, it means that mere negligence, per se, would not prevent a resulting mishap from being an accident. With this I would agree. The important point in the present case is, not that Mrs. Brown was negligent in the driving of her car, but that, having rendered herself incapable to drive an automobile, by her own conduct, and having been made aware of that incapacity, she deliberately determined to drive her car while in that condition when (to quote the trial judge) «she had to know that it would or could cause her foreseeable harm».

In my opinion it was not necessary for the insurer to prove that she deliberately drove her car into the building in order to establish that the occurrence was not an accident. If a person voluntarily embarks upon a foolhardy venture from which personal injury could be foreseen as an almost inevitable consequence it cannot properly be said that when the mishap occurs, it is an accident.

In my opinion the appeal should be allowed, the judgment of the Court of Appeal set aside, and the judgment at trial restored, with costs to the appellant in this Court and in the Court of Appeal.

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Appeal dismissed with costs, MARTLAND J. dissenting.

Solicitors for the appellant: McCarthy & McCarthy, Toronto.

Solicitors for the respondent: Thomson, Rogers, Toronto.