Mrs Fiona Elsie Burnett Or Grant Against International Insurance Company Of Hanover Ltd
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Brodie,Lord President |
| Neutral Citation | [2019] CSIH 9 |
| Date | 22 February 2019 |
| Docket Number | PD4/16 |
| Court | Court of Session |
| Published date | 22 February 2019 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2019] CSIH 9
PD4/16
Lord President
Lord Brodie
Lord Drummond Young
OPINION OF LORD CARLOWAY, the LORD PRESIDENT
in the Reclaiming Motion
in the cause
MRS FIONA ELSIE BURNETT or GRANT
Pursuer and Respondent
against
INTERNATIONAL INSURANCE COMPANY OF HANOVER LTD
Fourth Defenders and Reclaimers
Pursuer and Respondent: Milligan QC, Hastie; Lefevre Litigation
Fourth Defenders and Reclaimers: McBrearty QC, Cleland; Clyde & Co
22 February 2019
Introduction
[1] This is a reclaiming motion against an interlocutor of the Lord Ordinary 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
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arising out of “deliberate acts” by the insured or their employees. The issue is whether this
exclusion applied to the death.
Facts
[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.
[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 whilst 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
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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 training. You used the hold described when taking
down and restraining [the deceased]. All of this was part of a chain of events that
ended with [the deceased’s] tragic and untimely death. ...
There was a conflict of medical evidence as to the cause of [the deceased’s] death and
the jury have resolved this in your favour. By reason of the verdict of the jury, you
are not in law responsible for [the deceased’s] death. Your culpability extends to the
assault being carried out in the manner found by the jury.
...
It was said on your behalf that what you did was badly executed, not badly
motivated ... I accept what is said on your behalf in this regard.”
Insurance policy
[5] The relevant insurance policy covers the second defenders in relation, to inter alia,
both public and employer’s liability. The policy notes that the second defenders’ business
was that of “Manned Guarding & Door Security Contractors”. The annual premium was
£2,875.55. The number of “door supervisor” employees was recorded at 57 with their wages
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