THROWING A TENNIS BALL

Taranaki Daily News, 24 September 1930, Page 3

THROWING A TENNIS BALL

MAN’S UNUSUAL ACCIDENT. INSURANCE DISPUTE DECIDED. \ Reserved judgment was-delivered in .the Supreme Court at Wellington list week by Mr. Justice Blair on a, case . heard in June, involving consideration o fthe question of whether a shipping clerk, Leslie Henry Charlqs Long, whoso shoulder injured when he threw a tennis ball last Labour Day, was entitled to relief under an insurance policy from the Colonial Mutual Life Assurance Society, Limited. His Honour found for the plaintiff with costs as per scale. The facts were that.o)i Labour Day Long threw back into the Clyde Quay School tenns courts a ball whch had been lit out by ehldren playng thqre. He immediately felt something ‘‘go” m his shoulder and later in the day suffered considerable pain, which sent him to the hospital. The trouble was diagnosed as. a severe sprain in the shoulder and rhe plaintiff required treatment until the following March. He, claimed TOO 5s and costs from the insurance society. The insurance company, said His Honour, did not dispute that the plaintiff’s injury was the result of an accident. It denied that plaintiff’s accident was covered by the risks insured against by the . 1 , policy. The policy in effect said that up- - less the mean's which were the source of the injury satisfied four tests, no liability could arise under the clause of the policy upon which the plaintiff relied. The four tests were that the “means’!-.-must be: (a) Accidental, (b) violent, (c) external and (d) visible. “The injury to the plaintiff,” said His p ; Honour, “was caused by- -the violence ( of the movements he made to his arm when throwing the ball, combined with his poise at the moment of throwing. Therefore the - movement of the arm, plus the poise, were, the ‘means’ which were the source of plaintiff’s injury. These ‘means’ were clearly Visible and . were of sufficient violence to cause injury. It thus follows that two of the four tests—violence and visibility—were satsficd.’L . ■ As to the other two' elements His Hon- . ■ our said that, paraphrasing, the words’ J of Lord Justice Smith in the ease of Hamlyn v. Crown Accidental Insurance . Company, in 1893, to the present case, the means by which the injury to Long was caused were the picking up of the ball, thp movement backward of the arm preparatory to and poised tor throwing, followed by the strong forward throw- of the arm in delivering tne ball. All those acts were external and visible. .. . Were it not for-thp decision in Hamlyn’s case, where had remained unquestioned since 1893, he would nave , had some difficulty in treating Longs ■. accident as due to an external and accidental cause. But to do otherwise ne would have to treat Hamlyn’s case as wrongly decided. . . • The form of policy in that case was identical in ef- ~ feet with Long's policy, and it was not an unfair inference to make that when the defendant company issued its policy to Long its advisers knew of the decision and the extent of the liability it cast on, companies using that form. Mr. D. R. Hoggard, who appeared tor the company, intimated the possibility of an appeal being made against rhe decision.’ His Honour said he would like to see an appeal made; frankly, it was a difficult. point. • - An order was made granting a stay of execution of the judgment for 14 days, 'and, if an appeal is to be lodged, until after the case is disposed of