Avalon Consolidated School Board v. McNamara Industries Ltd. and Canadian Indemnity Co., (1974) 6 Nfld. & P.E.I.R. 375 (NFSC)

JudgeMifflin, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateMay 31, 1973
JurisdictionNewfoundland and Labrador
Citations(1974), 6 Nfld. & P.E.I.R. 375 (NFSC)

Avalon School v. McNamara (1974), 6 Nfld. & P.E.I.R. 375 (NFSC)

MLB headnote and full text

Avalon Consolidated School Board v. McNamara Industries Ltd. and Canadian Indemnity Co.

Indexed As: Avalon Consolidated School Board v. McNamara Industries Ltd. and Canadian Indemnity Co.

Newfoundland Supreme Court

Mifflin, J.

January 8, 1974.

Summary:

This case arose out of a claim for damages by the owner of an arena arising out of the collapse of the roof of the arena during construction. The owner claimed against the contractor which erected the roof. The contractor claimed indemnity from the third party insurer pursuant to the terms of a liability policy. The liability policy insured the contractor against damage to the property of others caused by an "accident" - see paragraph 17. The Supreme Court held the contractor negligent for failing to stabilize the roof in accordance with established procedures and for piling steel roof decking on the roof at a time when the roof was unstable.

The Supreme Court held that the third party insurer was liable under the liability insurance policy to the contractor because the collapse of the roof was an "accident". The Supreme Court stated that the most unfavourable interpretation of the evidence would lead to the conclusion that the employees of the defendant contractor were grossly negligent. However, the employees of the defendant contractor did not intend to produce the collapse of the roof and, accordingly, there was no deliberate courting of the risk. The Supreme Court stated that the collapse of the roof was an unintended and unexpected occurrence - see paragraph 105.

Building Contracts - Topic 3425

Action for breach of contract against a building contractor - Defective workmanship resulting in the collapse of a building - The collapse occurred during the erection of the steel superstructure for a roof for an arena at St. John's, Newfoundland - The Newfoundland Supreme Court held the defendant contractor liable to the owner for breach of contract and for negligence in the erection of the steel - See paragraph 75.

Insurance - Topic 2034

Risk - Extent of the risk - What constitutes an "accident" - A building contractor purchased liability insurance which covered damage to the property of others caused by an "accident" - The contractor was found negligent when the steel superstructure for a roof for an arena at St. John's, Newfoundland, collapsed during erection by the contractor - Whether the defendant contractor courted or invited the risk when it failed to stabilize the roof - The Newfoundland Supreme Court held that the insurer was liable under the policy issued to the contractor because the loss resulted from an "accident".

Words and Phrases

Accident - The Newfoundland Supreme Court discussed the meaning of the word "accident" as found in a liability insurance policy - See paragraphs 79 to 106.

Cases Noticed:

Dufferin Paving and Crushed Stone Limited v. The Canadian Surety Company, 2 I.L.R. 525, folld. [para. 77].

Semkov v. Merchants Casualty Insurance Company, 4 I.L.R. 327, folld. [para. 77].

The Canadian Indemnity Company v. Andrews George Company Limited, [1953] 1 S.C.R. 19, folld. [para. 77].

Crisp v. Delta Tile & Terrazzo Co., [1961] O.W.N. 29 (trial); [1961] O.W.N. 278 (C.A.), folld. [para. 77].

R.D. McCollum Ltd. v. Economical Mutual Insurance Co., [1962] O.R. 850, folld. [para. 77].

Candler v. London & Lancashire Guarantee & Accident Co. of Canada et al., [1963] 2 O.R. 547, folld. [para. 77].

Marshall Wells of Canada Limited v. Winnipeg Supply and Fuel Company Limited et al., 49 W.W.R. 664, folld. [para. 77].

Greenway v. Saskatchewan Government Insurance Office (1967), 59 W.W.R. 673, folld. [para. 77].

Trynor Construction Co. Ltd. v. Canadian Surety Co., 10 D.L.R.(3d) 482; 1 N.S.R.(2d) 599, folld. [para. 77].

Claxton v. Travellers Insur. Co. of Hartford (1917), 36 D.L.R. 481, folld. [para. 78].

Finline v. Whitecross Insurance Association Limited, 125 The Law Times 632, folld. [para. 78].

Fenton v. J. Thorley & Co. Limited, [1903] A.C. 443, folld. [para. 78].

Straits Towing Limited et al. v. Walkem Machinery & Equipment Ltd. et al. and Canadian Indemnity Company, [1973] 5 W.W.R. 212, folld. [para. 78].

Counsel:

F.J. Aylward, Q.C., for the plaintiff;

D.P. Althouse, for the defendant;

G.L. Steele, Q.C., for the third party.

This case was heard by Mifflin, J., at St. John's, Newfoundland on May 31, 1973. Judgment was filed by Mifflin, J., on January 8, 1974.

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