Dramatic accidents having catastrophic consequences for the victims often result in legal proceedings with consequences just as catastrophic for the parties involved. The Superior Court of Quebec and the Court of Appeal have successively dealt with a case of that nature in Léveillé c. Courses Stock- Car Drummond Inc.

On June 22nd, 2002, Plaintiff Léveillé, a healthy 19 year old man, participated in an “Enduro” type race on a dirt track at Autodrome Drummondville. After roughly two-thirds of the race, the plaintiff’s vehicle rolled a few times and immobilized itself on the side after colliding with the vehicle of another participant. In the process, the fuel line between the tank and the engine was cut leaving to fuel to escape. The fuel eventually ignited when it came in contact with hot parts of the vehicle. Firefighters hired by the race track arrived at the site less than a minute after the accident.

Unfortunately, the firefighters were unable to extinguish the flames until seven minutes later. In the meantime, the plaintiff, who was not able to come out of his vehicle, was lying in the flames. The plaintiff survived the accident but was burned to the third degree on ninety percent of his body, lost all his fingers, underwent innumerable skin transplants, had his vocal cords burned by the heat he inhaled and must now use a wheelchair to move around.  

Plaintiff sued Courses Stock-Car Drummond (CSD), the owner of the track and promoter of the race, its liability insurer and the firefighters who attended the scene1. Against CSD and its insurer, the plaintiff raised that the security measures put in place that night were insufficient and that it was responsible for the negligence of its firefighters and employees. As against the firefighters, the plaintiff raised the errors they committed while trying to put out the flames. According to the plaintiff, barring these errors, the fire could have been extinguished much quicker and the damages would have been less. For the purposes of the hearing, damages were admitted at the sum of $1,000,000.  

The case raised many issues that the Superior Court and, subsequently, the Court of Appeal dealt with. The issues were as follows :

1. What was the liability of Courses Stock- Car Drummond?

2. What was the liability of the firefighters?  

3. Was CSD responsible for the negligence of the firefighters in its capacity as employer?  

4. Was the policy issued by the insurer triggered by this event in favor of CSD and/or the firefighters?  

1. The liability of CSD

This terrible accident was filmed by a spectator and the sequence of events was therefore relatively easy to establish. The video showed that the employees of the race track (other than the firefighters) arrived at the scene quickly. They tried to put out the flames with water hoses but gas fires cannot be put out with water. The result was that the employees pushed the fuel inside the cockpit of the vehicle thereby increasing the injuries suffered by the plaintiff. The difficulty was however to quantify the damages they caused. Indeed, the plaintiff had admitted in the course of his examination that he had felt burning within seconds of the beginning of the fire. How could the increased damage be calculated under the circumstances? The trial judge, faced with the impossible task of exactly assessing damages, ruled that CSD was responsible for twenty percent of the total damages and therefore rendered judgment against CSD for $200,000. There was no appeal of that portion of the judgment.  

2. The liability of the firefighters

The video of the events also showed that a foam tank mounted on the firefighters’ pickup truck had not worked for several minutes after the arrival of the firefighters such that the latter had to attack the fire with other means. The foam in the tank was conceived specifically for the purposes of fighting gas fires. The trial judge had determined that the firefighters had, in spite of not having access to the foam inside tank, saved the plaintiff’s life by creating a “water wall” to protect him from the flames in the cockpit. When the tank became functional again some three minutes later, they had used the foam and were able to extinguish the flames within approximately three minutes. The Superior Court judge could find no causal link between the damages suffered by the plaintiff and the firefighter’s negligence. The Court of Appeal came to a different conclusion. The Court first noted that, in the contract between CSD and the firefighters, the tank and foam it contained was a central consideration. The contract contained the following provision :  

“In case of fire, the fifty gallons of foam in the tank will be discharged into the cockpit of the vehicle in less than three minutes. To activate the system, it takes exactly five seconds!”

The tank being momentarily unusable at the time of the fire, it necessarily followed that the injuries suffered by the plaintiff would become more severe. The Court of Appeal stated :  

“Obviously the absence of foam did not increase the size of the fire as had water on fuel but, just as obviously, it did not reduce it. The flames remained intense while they would have been reduced by the foam if it could have been discharged upon arrival of the firefighters, one minute after the beginning of the fire, as they were three minutes later when, finally, the foam became available.”  

Further, the Court Appeal added:

“Here, facts are self-explanatory. If the fire is fought with foam, it loses intensity within the first minute and is almost totally extinguished after three minutes. Less intense flames would have helped the work of rescuers and it is more than probable that the Appellant would have been pulled out of the vehicle much sooner and would have been less injured. It is what the firefighters themselves presumed by discharging fifty gallons of foam in the cockpit within three minutes.”

Having come to the conclusion the plaintiff would have been pulled out of the vehicle twice as rapidly as he was in fact, the Court of Appeal rendered judgment against the firefighters for fifty percent of admitted damages less twenty percent already attributed to CSD. In practical terms, the firefighters were condemned to pay an additional sum of $300,000.  

3. The status of the firefighters

The Court has also had to rule on the issue of the status of the firefighters. Were they employees of CSD as they argued or were they rather independent contractors who thus involving only their personal responsibility? In Superior Court, the trial judge ruled that the firefighters were independent contractors based on the following findings :  

1. The wording of the contract between the firefighters and CSD;  

2. The fact that the firefighters provided their own equipment and vehicle;  

3. The fact that the firefighters published their own services and sponsors;  

4. The fact that the firefighters were working for fixed remuneration that were not dependent upon the number of hours past at the race track;

5. The fact that the firefighters were offering the services to other race tracks;  

6. The fact that they were acting without supervision or control of CSD.  

The Court of Appeal did not have to rule on this particular issue.  

4. Insurance covered

CSD’s insurer had issued a comprehensive general liability type of policy with a “Race Program” endorsement that contained the following exclusion :  

“1. Bodily injuries or material damages suffered by a “Participant” in the course of his activities for a race program.”

The insurer obviously raised that exclusion to deny coverage to CSD and/or the firefighters. The evidence adduced at trial showed that the policy was part of an insurance package that included health insurance in favour of Participants. The insurer of persons had paid to the plaintiff the indemnity stipulated in its contract in cases of serious injuries.

In Superior Court, the claim against the liability insurer was dismissed. The Court noted that the exclusion was clear and did not require interpretation. The trial judge had noted that the exclusion applied to a specific moment in time and not to a particular cause of the loss. It was therefore not useful to determine if the injuries resulted from the collision between the two vehicles, the negligence of the race track owner or the negligence of the firefighters. Clearly, the plaintiff was a “Participant” in the race at the time he was injured and his injuries were therefore excluded.  

In Appeal, the plaintiff argued that the liability of CSD was covered by the policy on the basis of the concept of concurring causes elaborated by the Supreme Court of Canada in Dersken vs 539938 Ontario Ltd.2  

In that judgment, the Supreme Court of Canada ruled that an insurer owed coverage to an insured when the loss resulted from two different and concurring causes, one being excluded and the other being covered (it must be said that the same principle was already applied in Quebec following the decision of the Quebec Court Appeal in Sécurité Nationale c. Éthier3).

The argument was dismissed by the Court Appeal. The principle of concurring causes was not appealed. Judge Paul Vézina of the Court of Appeal stated :  

“It is true that the injuries suffered by the Appellant results from numerous causes, firstly the collision, then the negligence of CSD’s employees and that of the firefighters.

We would have had a problem to determine the insurance indemnity if the provision of the insurance policy covered the damage resulting from one of these causes while excluding the one resulting from one or the two others.

But this is not the case here. The policy exclusion applies to “all bodily injuries suffered by a “Participant” (such as Appellant) in the course of the activities (of CSD) for a Race Program”.

As soon as there is participation in a race, there is no insurance coverage whatever the cause of the damage: collision with another vehicle, faulty driving by another racer, faulty instructions given by a race official, absence of adequate security measures, etc.” [Our translation]

The end result of this adventure was that the plaintiff obtained judgment against CSD (which was no longer in business and had not contested the action against it) for $200,000 and against the firefighters for $500,000 (including the $200,000 that CSD was ordered to pay, the liability with regards to the latter amount being probably solidary) but has seen his claim against the insurer being dismissed. On the human side, we can only sympathize with the plaintiff who was the victim of a tragic set of circumstances. This reminds us that extreme activities sometimes have just as extreme consequences.