Grant v International Insurance Company of Hanover Ltd
| Jurisdiction | Scotland |
| Judge | Lord Uist |
| Judgment Date | 22 February 2019 |
| Neutral Citation | [2019] CSIH 9 |
| Date | 22 February 2019 |
| Court | Court of Session (Inner House) |
| Docket Number | No 24 |
[2019] CSIH 9
Lord Uist
First Division
Insurance — Indemnity — Pursuer's husband killed as a result of an assault upon him by a door steward — Steward acquitted of homicide — Whether insurers bound to indemnify employers of steward — Whether loss arose out of a deliberate act of steward
Section 1 of the Third Parties (Rights against Insurers) Act 2010 (cap 10) (‘the 2010 Act’) provides that where a relevant person incurs a liability against which that person is insured under a contract of insurance, the rights of the relevant person under the contract against the insurer are vested in the third party to whom the liability is incurred. Section 3 provides that the third party may raise an action against the insurer and seek declarator as to the insurer's liability to the third party.
The pursuer's husband was restrained by a door steward outside licensed premises in Aberdeen. He was placed in a chokehold and died of mechanical asphyxiation. The steward was convicted of assault but acquitted of homicide. The pursuer raised a personal injuries action, inter alia, against the steward's employer, a company in liquidation, and the fourth defender, the employer's insurers. The pursuer sought declarator that the fourth defender was obliged to indemnify the steward's employer under a contract of public liability insurance, and that the employer's rights under the contract of insurance vested in her. The contract of insurance provided that liability was excluded in respect of “deliberate acts wilful default or neglect”. The Lord Ordinary held that the act of the steward was not a deliberate act as death occurred accidentally, and the steward did not intend to kill the deceased, and granted declarator. The fourth defender reclaimed.
The reclaimer argued that what was required to engage the exclusion was a blameworthy act. The steward had been convicted of assault, which was a deliberate act that caused the death of the deceased.
The respondent argued that the claim was advanced in respect of a negligently caused death. In order to engage the exclusion under the policy, a wilful act was required. That meant an act that was deliberate, not reckless.
Held that: (1) clauses of the type under consideration were generally intended to exclude losses deliberately inflicted by the person who had taken out the policy, including acts of the employees of the insured, and not losses which were accidentally caused, albeit by a deliberate physical act (paras 18–21); (2) the phrase “deliberate acts” was intended to cover acts which involved the insured, or his employees, doing something with the deliberate intention of bringing about a particular objective, and the exclusionary phrase did not cover a deliberate act, intended as one of restraint, which accidentally caused the death of the person restrained (paras 22, 23, 52–54, 62–68); and reclaiming motion refused.
Observed that the joint minute of admissions, which was intended to agree most of the evidence, was unsatisfactory as it had only agreed what the evidence at the trial had been. That was irrelevant and did not constitute a clear formulation of what were the agreed facts (paras 26, 32–34).
Hawley v Luminar Leisure Ltd [2006] IRLR 817 considered and Yorkshire Water Services Ltd v Sun Alliance and London Insurance plc[1997] 2 Lloyd's Rep 21applied.
Arnold v Britton [2015] UKSC 36; [2015] AC 1619; [2015] 2 WLR 1593; [2016] 1 All ER 1; [2015] HLR 31; [2015] 2 P & CR 14; [2015] L & TR 25; [2015] CILL 3689
Bell v Lothiansure Ltd 1993 SLT 421
CP (A Child) v Royal London Mutual Insurance Society Ltd sub nom Ronson International Ltd v Patrick [2006] EWCA Civ 421; [2006] 2 All ER (Comm) 344; [2006] 1 CLC 576; [2007] Lloyd's Rep IR 85
Charlton v Fisher [2001] EWCA Civ 112; [2002] QB 578; [2001] 3 WLR 1435; [2001] 1 All ER (Comm) 769; [2001] RTR 33; [2001] Lloyd's Rep IR 387; [2001] PIQR P23
City Equitable Fire Insurance Co Ltd (Re) [1925] Ch 407; [1924] All ER Rep 485
Cowan v Jeffrey Associates 1998 SC 496; 1999 SLT 757; 1998 SCLR 619
Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18; [2006] IRLR 817; [2006] Lloyd's Rep IR 307; [2006] PIQR P17; [2006] LLR 254
Kenyon, Son and Craven v Baxter Hoare & Co [1971] 1 WLR 519; [1971] 2 All ER 708; [1971] 1 Lloyd's Rep 232
Post Office v Norwich Union Fire Insurance Society Ltd [1967] 2 QB 363; [1967] 2 WLR 709; [1967] 1 All ER 577; [1967] 1 Lloyd's Rep 216
Socony Mobil Oil Co Inc v West of England Ship Owners Mutual Insurance Association (London) Ltd (The Padre Island (No 1)) [1984] 2 Lloyd's Rep 408
Swiss Bank Corp v Brink's-MAT Ltd [1986] 2 Lloyd's Rep 79
Yorkshire Water Services Ltd v Sun Alliance and London Insurance plc [1997] 2 Lloyd's Rep 21; [1997] CLC 213; [1997] Env LR D4
Young and Harston's Contract (Re) (1885) 31 Ch D 168
Fiona Elsie Burnett or Grant raised an action for reparation under the Court of Session personal injuries procedure seeking damages in respect of the death of her husband following an assault upon him by a door steward. The second defender, the company employing the steward, was in liquidation and the pursuer sought declarator that the fourth defender, the employer's insurers, was bound to indemnify the second defender under a contract of insurance.
The cause called for a debate before the Lord Ordinary (Uist). At advising, on 5 April 2018, the Lord Ordinary held that the fourth defender was bound to indemnify the second defender and granted declarator ([2018] CSOH 34). The fourth defender reclaimed.
Clerk, JF, and Lindsell, WHB, Torts (22nd Jones et al ed, Sweet and Maxwell, London, 2017), para 15.23
Norrie, KMcK, “Interference with Liberty: Wrongful detention” in Stair Memorial Encyclopaedia: The Laws of Scotland (Butterworths/Law Society of Scotland, Edinburgh, 1995), vol 15, paras 435 et seq
The cause called before the First Division, comprising the Lord President (Carloway), Lord Brodie and Lord Drummond Young, for a hearing on the summar roll, on 31 October 2018.
At advising, on 22 February 2019—
Lord President (Carloway)—
[1] This is a reclaiming motion against an interlocutor of the Lord Ordinary (Uist), dated 5 April 2018, granting a declarator that the fourth defenders are bound to indemnify the pursuer in respect of the death of her husband on 9 August 2013. The deceased was killed as the result of an assault upon him by a door steward (‘bouncer’). The door steward was employed by a company who carried public liability insurance which excluded liability arising out of ‘deliberate acts’ by the insured or their employees. The issue is whether this exclusion applied to the death.
[2] The pursuer is the widow of Craig Grant, who died on 9 August 2013. The former first defender, against whom the action has been abandoned, was employed as a door steward by the second defenders (Prospect Security Services Ltd (in liquidation)) at the Tonik Bar in Aberdeen. The second defenders have not entered appearance. The bar was leased by the former third defenders (Blu Inns Ltd), against whom the action has also been abandoned. The fourth defenders were the insurers of the second defenders. The pursuer seeks to enforce the second defenders' rights against the fourth defenders under the Third Parties (Rights against Insurers) Act 2010 (cap 10) (‘the 2010 Act’).
[3] The deceased had been drinking in the bar. He had fallen asleep. He was intoxicated as a consequence of excessive alcohol and cocaine consumption. He was woken up by the first defender and ejected from the bar. He returned to confront the stewards, of whom there were three, by making two underhand swiping motions at them. The first defender seized the deceased around the neck from behind and spun him around. He put him on, and pinned him to, the ground while continuing to hold him by the neck. The two other stewards were involved in restraining the deceased, but it was the first defender who had continued to hold him around the neck for about three minutes. The deceased was being held pending the arrival of the police, who had been phoned. Shortly after he was released, the deceased was pronounced dead. The cause of death was mechanical asphyxia.
[4] The first defender was tried on a charge of murder. He was convicted only of assaulting the deceased by seizing him by the neck, forcing him to the ground, placing him in a neck hold and restricting his breathing. A lengthy sentencing statement prepared by the trial judge was agreed to be ‘an accurate summary of the evidence’. This contained the following narrative:
‘[The deceased] was pinned down on his front on the ground with you continuing to hold him around the neck area. [A second door steward] held [the deceased's] arms behind his back and a third door steward restrained [the deceased's] legs. Apart from one or two kicks with his legs from that prone position, which the third door steward had no difficulty in restraining, [the deceased] did not struggle further. …
[A]s soon as [the deceased] was on the ground he did not shout or struggle at all. He was described as going blue very quickly and choking and coughing. … [Y]ou were leaning on [the deceased] with all of your weight, or … putting as much pressure on [the deceased's] windpipe as possible. … You maintained your hold for a little short of three minutes. …
[A]s a door steward you had undergone a period of training … [A] door steward is a licenced occupation and in respect of which certain standards are expected. This included training in minimising conflict and avoiding violence. This also included training on acceptable methods of restraint. A neck hold was not one of these. Indeed, so dangerous is that hold regarded to be, that it is not even demonstrated in a classroom setting. … [You should] never detain someone like that because it was dangerous.
[T]hat night you ignored this...
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