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Torts - Indemnity from Tort. Neely v MacDonald
In Neely v MacDonald (Ont CA, 2014) a business contracted with a golf course for a tournament. One of the guests was injured in a golf cart accident and when the golf course was sued, they third-party claimed against the business under a contractual indemnity clause which made the host liable for "any damage or claims of any nature whatsoever that may arise from or through the use of a golf cart." At issue in the case were both the alleged negligence of the driver-guest, and the golf course itself in designing the terrain where the accident took place (on a hill). The Court of Appeal read the contractual indemnity narrowly against the golf course, reasoning as follows:[7] For ClubLink to shift the risk of its own negligence to CLC successfully, the contract must say so in the clearest terms. Fenn v. Peterborough (City) (1979), 1979 CanLII 77 (ON CA), 25 O.R. (2d) 399 (C.A.), aff’d 1981 CanLII 66 (SCC), [1981] 2 S.C.R. 613, was a decision of a five-judge panel of this court which was affirmed by the Supreme Court. This court’s statement at paras. 35 and 36 was adopted by the Supreme Court:As we have agreed with the trial Judge in his finding that Consumers owed a duty of care, not only to the plaintiffs but also to the Commission, we know of no authority which allows a party to be indemnified for its own negligence in the absence of a contractual right thereto and we were referred to none.
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If one is to be protected against and indemnified for one's own negligence there would have to be an indemnity clause spelling out this obligation on the other party in the clearest terms. [Emphasis added] The Court of Appeal upheld the indemnity with respect to the driver-guest's negligence, but not with respect to the golf course's design negligence.
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