Court Of Appeal Sends Clear Message On Scope Of Indemnity Provisions
An indemnity against "any damage or claims" may not be comprehensive. So ruled the Ontario Court of Appeal in Neely v. MacDonald 1, a decision containing important guidance for drafters of indemnity provisions.
Background
The case involved a golf cart accident. The plaintiff-passenger ("Neely") was injured when the driver ("MacDonald") lost control of a golf cart while driving down a steep hill on a course owned by ClubLink. Neely sued MacDonald for negligence in the operation of the cart and ClubLink for failing - despite previous complaints - to correct the grade of the hill.
ClubLink claimed over against the tournament host, Canadian Litigation Counsel Inc. ("CLC"), on the basis of an indemnity clause in the contract between ClubLink and CCL. The clause provided as follows:
CUSTOMER IS LIABLE FOR ALL DAMAGE CAUSED BY CUSTOMER AND/OR THEIR GUEST(S)
The Customer and/or their guest(s) agree to hold ClubLink Corporation and its...
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