A widow whose husband died after being choked by a pub bouncer has won a legal battle against insurers after suing the door steward’s former employers for damages.
A judge in the Court of Session ruled that an insurance company, which was seeking to avoid paying out on the basis that its liability was excluded by criminal acts, is obliged to indemnify the security firm after Fiona Grant raised an action claiming the bouncer’s employers were “vicariously liable” for the death of her late husband Craig Grant.
Lord Uist heard that Mr Grant died after being escorted from the Tonik Bar in Aberdeen on 9 August 2013, and that a post mortem examination certified the cause of death as “mechanical asphyxia”.
The first defender Jonas Marcius was subsequently charged with the murder of the deceased but, following a trial at Aberdeen High Court he was convicted of assaulting the deceased by “seizing him on the neck, forcing him to the ground, placing him in a neck or choke hold and restricting his breathing; and in January 2015 he was sentenced to a community payback order with an unpaid work element of 250 hours.
The pursuer raised an action for damages claiming that the death of her husband was caused by the “negligence” of the first defender at common law, for which the his then employers Prospect Security Ltd (second defenders) and bar owners Blu Inns Ltd (third defenders) were both “vicariously liable”, and against International Insurance Company of Hanover Ltd (fourth defenders) – which provided public liability insurance to the security firm – in terms of the “Third Party (Rights against Insurers) Act 2010.
But the fourth defenders argued that they were not obliged to indemnify the second defenders.
The principal submission for the fourth defenders was that their liability to indemnify was “wholly excluded” by clause 14 of the policy of insurance, which stated that the insurers were not liable for “deliberate acts, wilful neglect or default”.
It was argued that the first defender’s actions amounted to an assault and whether or not he intended to kill the deceased was “irrelevant”; he had intentionally committed a blameworthy act which caused the death of the deceased – an act which was “clearly and unambiguously excluded” by the terms of the policy.
With reference to the case of Hawley v Luminar Leisure Ltd  PIQR P17, in which the insurers were held liable to indemnify the insured for one of their door stewards having, apparently without provocation, punched a bystander so hard that he had suffered severe brain injury, clause 14 operated to exclude or limit liability for criminal or otherwise unlawful acts committed by a door steward.
Alternatively, if liability was not wholly excluded by clause 14, it was limited to the sum of £100,000 because the actions of the second defenders’ employees amounted to “wrongful arrest” in terms of clause 20 and extension 3 of the policy.
‘Fault and negligence’
However, on behalf of the pursuer it was submitted that the death of the deceased was caused by the “fault and negligence” of the first defender, who was at the material time acting “in the course of his employment” with the second defenders, who were insured by the fourth defenders.
His actions were not “wilful or deliberate” in terms of the policy as he did not intend to kill the deceased and there was no evidence that he was reckless, as confirmed by the result of the criminal trial, and clause 14 applied only when the outcome giving rise to liability was the intended objective.
The more obvious explanation was that the first defender was simply “over-zealous” in his actions, which caused the death negligently, and because of the “contra proferentem” rule the ambiguity in the interpretation of the contract had to be resolved against the fourth defenders.
The pursuer’s claim did not arise from wrongful arrest, as there was no arrest, but from a breach of duty at common law; the proximate cause of the claim was “breach of the duty of care” rather than deprivation of liberty.
Since neither of the exclusion clauses applied, it was argued that the fourth defenders were obliged to indemnify the second defenders.
The judge agreed that the fourth defenders were obliged to indemnify the second defenders in respect of their liability to the pursuer arising out of the death of the deceased and that the second defenders’ right to indemnity had been transferred to and vested in the pursuer under sections 1 and 3 of the 2010 Act.
In a written opinion Lord Uist said,
“The question which I have to decide is a pure question of construction of the policy of insurance entered into between the second and fourth defenders, and in particular of the expression ‘deliberate acts wilful neglect or default’. In approaching this task I must apply the principles of construction set out above, in particular the contra proferentem rule.
“In my view it is important to bear in mind what this action is about and the legal basis for it. The claim is a derivative claim by the widow of the deceased arising out of his death. The basis of the action is that the first defender failed in his duty of reasonable care for the safety of the deceased and so caused his death.
“The pursuer does not aver, and therefore would not seek to prove should the action proceed to proof, that there was any wilful act, wilful neglect or default on the part of the first defender causing the death of the deceased. In my opinion, applying the contra proferentem rule and adopting the approach of the court in the case of Hawley, the submission for the pursuer that the clause applies only when the outcome giving rise to liability, namely death, was the intended objective is correct.
“It is quite clear, and, I think, accepted by both the pursuer and the fourth defenders, that the first defender did not wilfully, intentionally or deliberately set out to cause the death of the deceased. The death was an unintended and unfortunate consequence of his assault upon the deceased.”
Lord uist - Judge
“Contrary to the submission made on behalf of the fourth defenders, I do not accept that whether or not he intended to kill the deceased is irrelevant. Nor do I accept that the way in which the pursuer has framed her case is irrelevant. The case pleaded by the pursuer is that the death of the deceased was caused by the fault and negligence of the first defender.
“There is no suggestion in her case that he intended to kill the deceased. Neither is there any suggestion in her case that the deceased was subject to unlawful arrest as defined in the policy.
“An unlawful arrest could not competently form the basis of a derivative action of the type pleaded by the pursuer. In my opinion the references by the fourth defenders to unlawful arrest are wholly irrelevant: an action based on unlawful arrest would have to have been brought by the pursuer in a different capacity, as a representative of the deceased.”
Lord uist - Judge