Court upholds $2.5-million award to couple mauled by tiger
KIRK MAKIN
JUSTICE REPORTER
The Ontario Court of Appeal yesterday upheld a $2.5-million award to a former exotic dancer and her ex-boyfriend, who were mauled by a Bengal tiger a decade ago while driving through African Lion Safari and Game Farm in Rockton, Ont.
In a 2-1 ruling, the majority agreed with a trial finding that David Balac and Jennifer-Anne Cowles did not contribute to their misfortune by intentionally lowering their car windows moments before a 113-kg tiger named Paca sprang at them.
"The fact that there could be another explanation does not undermine the trial judge’s conclusion," Mr. Justice Dennis O’Connor and Mr. Justice Paul Rouleau said.
They also agreed that the design of the park and its general operation fell below acceptable standards. One park employee negligently removed a tiger cub from among adult tigers shortly before the attack, the majority said, while another employee failed in her duty to watch the animals as Mr. Balac and Ms. Cowles were driving through.
At the end of a month-long trial last year, Madam Justice Jean MacFarland rejected the defendant’s claims that Mr. Balac, 31, and Ms. Cowles, 28, ignored posted signs at the game park warning visitors not to feed the animals and to keep their car windows rolled up.
She found the park strictly liable, awarding Mr. Balac $1.7-million and Ms. Cowles $813,000. She accepted the couple’s testimony that their vehicle’s automatic windows were closed prior to the attack and were likely lowered inadvertently after a tiger butted against the car.
The appeal court majority ruled that Judge MacFarland gave proper consideration before deciding not to permit a jury to hear the case on account of its legal complexity.
Mr. Justice Stephen Borins took issue, saying in his dissenting reasons that juries are quite capable of understanding complex cases.
On another disputed point, Judge O’Connor and Judge Rouleau said that while the trial judge was wrong to exclude evidence from a private investigator who spoke to Ms. Cowles while she was working at a strip club well after the attack, the evidence was insufficient to have affected the trial result.
Again, Judge Borins disagreed, and said the evidence should have been heard.
The tiger bit down on Mr. Balac’s right arm, destroying muscles, tendons and nerves. It also attacked Ms. Cowles, who was pregnant at the time, biting her on the hip and scalp and nearly dragging her out the passenger window.
Two other tigers tried to climb in through the driver’s window as the couple struggled to get out of the attacking animal’s clutches.
According to evidence at the trial, Mr. Balac, an accomplished accordion player and outgoing Sheridan College student, turned into an unemployable recluse after the incident.
The disfiguring scars and anxiety Ms. Cowles suffered as a result of the attack almost ended her career as an exotic dancer. After the attack, she changed her stage name to Dominique and performed with an S&M theme, wearing black clothing and using whips and chains as props.
Ms. Cowles testified that she couldn’t recall whether the windows were up or down, but added that Mr. Balac must have accidentally hit the power window button when she "jumped" to his side of the car after being startled by the tiger as it advanced toward them.
TPStory/TPNational/Ontario/
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