Appeal judges have upheld a ruling that an insurance company was bound to indemnify the employers of a door steward who caused the death of a person he was ejecting from a bar by using a dangerous neck hold.
Lord President Carloway, Lord Brodie and Lord Drummond Young in the Court of Session affirmed the decision of Lord Uist that Fiona Grant, the widow of Craig Grant, was entitled to payment from International Insurance Co of Hanover Ltd over the actions of Jonas Marcius, then employed by Prospect Security Ltd, despite an argument for the insurers that an exclusion for "deliberate acts wilful neglect or default" applied.
The deceased was being escorted from a bar in Aberdeen after falling asleep at a table. He was unsteady on his feet. Once outside he made swiping motions towards the stewards, at which Marcius grabbed him round the neck from behind and pinned him to the ground while continuing to hold him for about three minutes. The deceased remained motionless after Marcius released his grip and was pronounced dead soon after. The cause of death was mechanical asphyxia. Marcius was charged with murder but after trial was convicted of assault and sentenced to a community payback order. There was evidence that the hold he used was dangerous and contrary to his training, but he told the police he believed he was acting in defence of his colleagues.
Lord Uist held, interpreting the exclusion clause in the way less favourable to the insurers who had drafted it, that the clause only applied when the outcome giving rise to liability, i.e. the death, was the intended objective. In this case, death had been an unintended consequence of the assault.
On appeal the insurers argued that the judge should have followed English case law, which had given a uniform interpretation to the phrase in question. In the construction of insurance contracts, the words of the policy should be given their ordinary meaning, in their context. The construction should reflect the intention of the parties and accord with commercial common sense. A literal construction that led to an absurd result should be rejected. There was a blameworthy act here as Marcius had been convicted of assault. Whether the assault had been intended to kill was irrelevant: he had committed a deliberate act which had caused the death.
All three appeal judges delivered separate opinions, while agreeing in the result. Lord Carloway said that whether the loss – the death of the deceased – was covered could not, "contrary to the Lord Ordinary’s reasoning, depend on the manner in which the case was pled (e.g. as an assault or a negligent act). Liability in respect of the loss must exist (or not) equally in the case of an injury causing death as it does to one causing pain and suffering (solatium) or other personal damage".
"The other important contextual element" was that the policy was undoubtedly intended to cover the acts and omissions of door stewards, which would commonly involve deliberate physical acts of one kind or another. The general cover offered was "accidental injury". Focusing on the approach to intent in certain cases, he concluded: "Approached at in this way, the phrase 'deliberate acts' in the policy is intended to cover acts which involve the insured, or his employees, doing something with the deliberate intention of bringing about a particular objective, notably the creation of liabilities for losses covered by the policy. Seen in this light, the exclusionary phrase does not cover a deliberate act of an employee, intended as one of restraint, which “accidentally” causes injury or death to the person restrained. For the exclusion to operate, the employee must have deliberately intended to cause the death of, or at least serious injury to, the deceased. That is not the situation in this case."
Lord Brodie pointed out that an "overly literal construction" of the exclusion would "deprive the obligation to indemnify of all content, in that it is virtually impossible to conceive of a liability being incurred by a corporate insured which could not be said to arise from an act (in the sense of doing something or choosing not to do something) of a director or employee. That is simply not a commercially acceptable construction". Having regard to the commercial context of the insured company's operations, the proper construction of “deliberate acts” in the exclusion was "the doing of something with the deliberate intention of bringing about a particular objective, namely the loss liability for which there would otherwise be a liability to indemnify". That "avoids absurdity without the need to read in words which do not appear in the text".
Lord Drummond Young added: "In my opinion the reference in exclusion 14 to 'wilful' default or neglect signifies a failure to act with the intention that a particular type of consequence should result. The precise consequence that eventuates need not be intended, but harm of that nature should. Mere recklessness as to the consequences does not in my opinion satisfy that requirement....
"I consider that it cannot be said that the first defender intended to cause the death of the deceased, or indeed to inflict serious injury on him. What the first defender did is rather to be considered as an attempt to restrain the deceased in a manner that went well beyond what was reasonable and proportionate. On that analysis, the fatal injuries suffered by the deceased resulted from gross carelessness, or possibly recklessness, but not from a deliberate act on the part of the first defender."
However in his view the Lord Ordinary was correct to consider the nature of the pursuer's claim, as having been based not on wrongful arrest (separately referred to in the policy) but on compensation for death based on fault and negligence of the insured's employee.