A group of Siberian tigers attacked and injured a couple who were driving their car through a game park. The game park was strictly liable for their injuries. Section 267.1(7) of the Insurance Act makes all parties liable for injuries resulting directly or indirectly from use or operation of an automobile severally liable for the damages. The judge determined that section 267.1 of the Insurance Act did not apply because the injuries suffered by the insureds when they were attacked by the tigers could not be said to arise from the use and operation of an automobile.

Cowles v. Balac, [2005] O.J. No. 229, Ontario Superior Court of Justice

David Balac, a student, and Jennifer Cowles, an exotic dancer, visited the African Lion & Safari game farm in April of 1996. Before entering the tiger reserve section of the park. they passed an African Lion & Safari vehicle leaving the tiger reserve with a tiger pup. While slowly driving their vehicle through the tiger reserve section of the park, they came across a number of Siberian tigers. The tigers attacked the vehicle. One tiger leaned through the passenger window and grabbed Mr. Balac by the right arm, and another tiger leaned through the driver side window and grabbed Mr. Balac by the left arm. The tigers were unable to pull Mr. Balac out of the car. The tigers released Mr. Balac. One of the tigers then bit Ms. Cowles in the head and tried to pull her out of the vehicle. The tiger dropped Ms. Cowles either as a result of Mr. Balac moving the car forward, or as a result of an African Lion & Safari truck arriving at the scene and shooing the tigers away. Both Mr. Balac and Ms. Cowles suffered severe physical and psychological injuries as the result of the attack.

African Lion & Safari was held to be strictly liable for the injuries suffered by Mr. Balac and Ms. Cowles under the doctrine of Scienter. MacFarland J. noted that the Siberian tigers were wild and dangerous animals, and that strict liability had to apply to African Lion & Safari in this situation.

African Lion & Safari argued that if any other parties were liable for the tiger attack, section 267.1 of the Insurance Act, R.S.O. would limit African Lion & Safari’s liability to their own fault or negligence. This was based on the fact that Section 267.1(7) of the Insurance Act makes all parties liable for injuries resulting directly or indirectly from use or operation of an automobile severally liable for the damages. MacFarland J. noted that the Plaintiff’s claim for damages was primarily on the basis of strict liability in law for those who keep wild, dangerous animals; and alternatively in negligence for breach of the occupiers’ liability and for the manner in which such animals were kept and/or controlled. There were no allegations of vehicular negligence made by or against the Plaintiffs. MacFarland J. relied upon the decision of the Ontario Court of Appeal in Hernandez v. 1206625 Ontario Inc. (2002), 61 O.R. (3d) 584 and determined that the essence of the action that the Plaintiffs commenced was not for damages occasioned by a motor vehicle. The presence of the motor vehicle was entirely ancillary to the essence of the action. Therefore, the injuries did not arise directly or indirectly from the use or operation of the motor vehicle. African Lion & Safari was liable for all of the Plaintiffs’ damages.

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