Gray v Barr
| Jurisdiction | England & Wales |
| Date | 1970 |
| Year | 1970 |
| Court | Queen's Bench Division |
Insurance - Public policy - Indemnity policy - Indemnity against damages payable in respect of personal injury caused by accidents - Defendant threatened deceased with loaded shotgun and killed him by fìring it unintentionally - Whether the death an “accident” within the policy - Whether contrary to public policy for the defendant to be entitled to indemnity.
On the night of June 13, 1967, the defendant armed with a loaded shotgun, went to G.'s farm in search of his wife who had been committing adultery with G. When he entered the house G. was standing at the top of the first flight of stairs, and G. truthfully told the defendant that his wife was not there. The defendant walked upstairs towards G. carrying the gun in front of him saying that he was going to see for himself and refusing to leave. He threatened to hit G. with the muzzle of the gun, and intentionally fired into the ceiling to frighten G. To protect himself G. struggled with the defendant, who fell downstairs and involuntarily fired a second shot which killed G. The defendant was acquitted on charges of murder or alternatively of manslaughter. The plaintiffs, the father and widow of G., brought an action as administrators of his estate claiming damages on the ground that G.'s death was caused by the defendant's negligence, which was admitted. By third party proceedings the defendant claimed an indemnity from the insurers under a “hearth and home” policy which indemnified him against all sums which he became legally liable to pay as damages in respect of bodily injury to any person caused by accidents:—
Held, (1) that using the shotgun to threaten violence with the intention and effect of frightening G. was an assault on G., and since the death was the consequence of that unlawful assault involving a threat of violence by the defendant which he must have realised was likely to result in some injury to G. it was manslaughter; and that the defendant acted in reckless disregard of the safety of G. and was also guilty of manslaughter by gross negligence.
(2) That in the context of the policy “accident” meant something done without intention, and the injury, the shot in the chest, was accidental in the sense of not being intentionally aimed or fired (post, p. 639B–D); but that the defendant's deliberate and intentional assault was an essential ingredient in the course of events leading to G.'s death, and on the grounds of public policy the defendant should not be entitled to the benefit of the indemnity under the policy (post, p. 641E–F).
Per curiam. In considering the doctrine of public policy the logical test is whether the person seeking the indemnity is guilty of deliberate, intentional and unlawful violence or threats of violence; if he was and death resulted therefrom, then however unintended the final death of the victim may have been the court should not entertain a claim for indemnity (post, p. 640E–F).
For the purpose of enforcing an indemnity clause, on a parity of reasoning with the motor car manslaughter cases, the shotgun cannot yet be equated with the motor car (post, p. 642A–B).
The following cases are referred to in the judgment:
Askey v. Golden Wine Co. Ltd. [
Beresford v. Royal Insurance Co. Ltd. [
Candler v. London and Lancashire Guarantee and Accident Co. of Canada (
Cleaver v. Mutual Reserve Fund Life Association [
Crippen, In the Estate of [
Daniels v. Jones [
Hall, In the Estate of [
Hardy v. Motor Insurers' Bureau [
Haseldine v. Hosken [
James v. British General Insurance Co. Ltd. [
Marles v. Philip Trant & Sons Ltd. [
Rex v. Larkin [
Taylor (J.) v. Taylor (I. L.) [
Tinline v. White Cross Insurance Association Ltd. [
Trim Joint District School Board of Management v. Kelly [
The following additional cases were cited in argument:
Andrews v. Director of Public Prosecutions [
Blake v. Barnard (
Fenton v. J. Thorley & Co. Ltd. [
Hollington v. F. Hewthorn & Co. [
Hornal v. Neuberger Products Ltd. [
Mills v. Smith (Sinclair Third Party) [
Nisbet v. Rayne and Burn [
Reg. v. Church [
Reg. v. Lamb [
Reg. v. Lipman [
Reg. v. St. George (
Stephens v. Myers (
Warner v. Couchman [
ACTION.
By the middle of 1966 a liaison had been formed between James Ian Gray and Mrs. Ethel Georgina Barr, the wife of the defendant, George William Barr. On the evening of June 13, 1967, the defendant's wife agreed to a reconciliation with him, but soon after they returned home she disappeared and his search for her was unsuccessful. The defendant, who was in an emotional and distressed condition, concluded that his wife must have gone to join Gray at his nearby farm. He took a double-barrelled shotgun and some cartridges, inserted two in the breech of the gun, and disregarding the advice of his cousin he went to Gray's farm taking the gun with him. When he entered, Gray was on the landing at the top of the first flight of stairs. The defendant asked if his wife was there and Gray truthfully replied that she was not, but the defendant walked upstairs towards Gray carrying the gun in front of him and saying that he was going to see for himself. Gray backed away across the landing and told him to put the gun down and leave, but the defendant swung the muzzle of the gun back over his left shoulder telling Gray to move out of the way to the bedroom and threatening to hit him with the muzzle, and he intentionally fired a shot into the ceiling to frighten Gray. Gray, in order to protect himself, struggled with the defendant, who fell downstairs scraping the muzzle against the woodwork and stucco and breaking the stock of the gun, and he involuntarily fired a second shot which killed Gray. He was charged with murder, but on September 22, 1967, at the Central Criminal Court before Melford Stevenson J. and a jury, he was acquitted of murder and of the alternative charge of manslaughter. The plaintiffs, George William Gray and Audrey Muriel Gray, the father and widow of the deceased, brought an action as administrators of his estate against the defendant claiming damages under the Fatal Accidents Acts for the benefit of the dependants and under the
Tasker Watkins V.C., Q.C. and E. A. Machin for the Prudential. In determining whether the assurance company is liable to indemnify the defendant the policy itself must be considered. The defendant satisfies the first requirement, namely, that bodily injury was caused to a person other than himself. Crucial questions arise out of the construction to be given to the remaining words and matters of public policy.
The Prudential is not liable to indemnify the defendant because the injury to Gray was not within the general intendment of the policy. Reliance is placed upon Candler v. London and Lancashire Guarantee and Accident Co. of Canada (
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