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Cite as: [2009] ScotCS CSOH_27, 2009 GWD 9-154, [2009] CSOH 27

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OUTER HOUSE, COURT OF SESSION

[2009] CSOH 27

A50/08

OPINION OF J G REID, QC

(Sitting as a Temporary Judge)

in the cause

JULIE ANN WARD

Pursuer;

against

NORWICH UNION INSURANCE LTD

Defenders:

________________

Pursuer: Benyon; Lefevre Litigation

Defenders: Upton, HBM Sayers

26 February 2009

Introduction

[1] This is a claim for payment under an Accidental Death Benefit Insurance Policy ("the Policy") by the widow of Ivan Ward ("Mr Ward"), a fisherman who died in the early hours of 5 January 2005 at Peterhead Harbour in the tragic circumstances described below. He was 32 years old when he died. He was the proud father of the three young children of his marriage, Jay, Dana and Billy, then aged 6, 4, and about fifteen months.

[2] When the case called for proof before answer on Tuesday 11 November 2008, counsel for the defenders, Michael Upton, moved the court to allow the Record to be opened up and amended in terms of his Minute of Amendment and the pursuer's answers, all as adjusted. Counsel for the Pursuer, Neil Beynon, moved the court to discharge the proof, essentially on the ground that the crew of which Mr Ward had been a member had only agreed to be precognosced very recently and he wished time to consider their statements, take instructions thereon and draft further adjustments. A motion to discharge the proof on what appears to have been somewhat different grounds, was refused by Lord Brodie on 30 October 2008.

[3] After hearing counsel, I refused the motion to discharge, but allowed the pursuer the rest of the day to consider her position and make and intimate any further adjustments to her Answers thought necessary. Some late productions were also tendered to which neither party objected. When the case called on Wednesday 12November, adjustments had been exchanged, and after further minor adjustments were made at the Bar (including adjustments for the Defenders), I allowed the pleadings to be amended. Both counsel indicated that they were ready to proceed. The evidence was concluded on Friday 14 November and I heard closing submissions on 26November 2008.

[4] Finally, I should record that there is pending before the Court, an action at the instance of Mrs Ward, as widow, guardian and executrix, against the owners and master of the Mizpah, for damages arising out of Mr Ward's death. The pleadings in that action are not before me. A proof was due to take place in December 2008 but that action has been sisted pending the outcome of the present action.

The Issue

[5] The issue is whether liability has been established under the Policy. The total accidental death benefit under the policy was £36,000. The relevant parts of the Policy are as follows:-

"In return for having received and accepted your premium we will pay the benefit(s) shown on your policy schedule if during the period of insurance any Insured Person suffers accidental bodily injury which is the sole cause of death.......

Accidental bodily injury This means bodily injury resulting solely and directly from accidental outward violent and visible means and does not include any sickness, disease or any naturally occurring condition or degenerative process or the result of any gradually operating cause.

Exclusions We will not pay for accidental bodily injury caused by or
resulting from

War

Invasion

Activity of a foreign enemy

Hostilities or warlike operations.....

Civil war

Revolution, rebellion ............

Civil Commotion

Military power

Usurped power

Radioactivity We will not pay for accidental bodily injury which involves:
Ionising radiation .........

The radioactive, toxic, explosive or other dangerous properties of explosive nuclear equipment

The Insured Person serving on active duty in any Armed Force

Suicide or intentional self-injury

Flying as a pilot or crew-member of any aircraft

Intoxicating liquor or drugs taken by the Insured Person (except drugs taken under medical supervision but not for the treatment of drug addiction)"

[6] I have underlined what appeared at the end of the day were the critical elements of the Policy conditions.

Facts
General Background

[7] Mr Ward was a member of the crew of the Mizpah II, (the Mizpah) a fishing vessel based in Shetland. The Mizpah is an 87 foot trawler built in about 1987. The skipper was David Robertson. He is also a director and one of the five shareholders in the company which owns the Mizpah (the Mizpah Shipping Company Ltd). The other members of the crew at the time were the skipper's son Tom, then aged sixteen years, Robert (Bobby) Shearer, and Garry Smith. Mr Ward had worked on the Mizpah II for about two years. He was the only member of the crew who did not live on the Shetland Isles. He resided at Rosehearty, Aberdeenshire with his wife and family.

[8] On or about Boxing Day 2004, the Mizpah with the above crew, including Mr Ward, and skippered by David Robertson set off on a fishing trip in the vicinity of the Faroe Islands. Mr Ward had worked regularly on the Mizpah for at least the two preceding years. On the morning of 4 January, 2005, they arrived at Peterhead Harbour, landed their catch, re-berthed at another part of the Harbour and carried out the usual tidying and cleaning up operations. The vessel was moored with its aft end almost flush to the quayside, with the port side closer to the quayside than the starboard side. There was no gangway or walkway between the quayside and the Mizpah. In the course of these operations, in the afternoon, Mr Ward consumed several (perhaps two or three) small (330ml) bottles of beer or lager plus a small quantity of whisky. Mr Smith also drank some beer or lager and some whisky. Tom Robertson had a bottle of beer or lager. Robert Shearer also had a bottle of beer. In the course of the afternoon, the skipper raised the possibility of going ashore for a meal. Only Mr Shearer seemed interested in a meal with the skipper. It was generally assumed, although it was not discussed, that Mr Ward would return home to Rosehearty at some point that evening.

Early Evening

[9] The crew completed their work by between about 5pm and 6pm. Mr Ward was probably the first to leave the Mizpah, at about 5.45pm. He left his bag with work clothes and other items on board (There was a washing machine and tumble dryer on board). He went to the Union Bar which was a few minutes walk from the Mizpah and about a quarter of a mile away. Mr Smith and Tom Robertson were next to leave the Mizpah; they left together about twenty minutes later and joined Mr Ward in the Union Bar. Robert Shearer and David Robertson were the last to leave the Mizpah. They left together between about 6.30pm and 7pm. They joined the others in the Union Bar. They all drank beer or lager at the Union Bar for an hour or so. In the course of that period, between about 7pm and 9pm Mr Ward telephoned his wife using a mobile phone borrowed from Gary Smith. His wife was at home at Rosehearty, by Fraserburgh, with the children and a family friend. During that telephone call, Mr Ward also spoke to the family friend and to the elder children. He told her he was going for a few drinks and a meal and that she should pick him up the following day. Mr Ward did not tell anyone else who gave evidence that he planned to spend the night on the Mizpah.

[10] While at the Union Bar on this first occasion, Mr Ward probably consumed at least three pints of beer. Mr Smith consumed about three pints of lager or beer. It is not entirely clear how much David or Tom Robertson or Robert Shearer consumed on that first visit to the Union Bar, but was probably in the order of two or three pints of beer or lager each

Later in the Evening
[11] Later in the evening, at about 9pm, Mr Ward, Tom Robertson, and Gary Smith went to Bailley's Bar, where they all continued to drink beer or lager. They were there for about two hours. Gary Smith consumed two pints and two whiskies while there.

[12] David Robertson and Robert Shearer did not go to Bailley's but went to a local Indian restaurant for a meal. They were in the restaurant for two or at most about two and a half hours. While there Mr Robertson drank one or two glasses of wine and a pint of beer. Mr Shearer drank lager.

[13] Tom Robertson, Mr Ward and Mr Smith left Bailley's Bar about 11pm or shortly before and went to another bar, Mambo's, which was about a hundred yard's walk or so. David Robertson and Robert Shearer left the restaurant about 11pm, and met up with the crew at Mambo's Bar. Some members of the crew of the Alison Kay were also there. While at Mambo's Mr Ward was told off for being loud and drunk, by one of the members of the crew of the Alison Kay. Mr Smith consumed two pints and two whiskies while at Mambo's

[14] At some point, Mr Ward left Mambo's on his own. What he did or where he went is unclear but he must have returned eventually to the Union Bar.

Second Visit to Union Bar

[15] The rest of the crew of the Mizpah and skipper Robertson left Mambo's at about Midnight and returned to the Union Bar, where they continued drinking. Mr Ward was already there, although it appears that Mr Ward did not drink anything because the staff refused to serve him. The others (ie the Robertsons and Shearer) joined them a little later. By this stage, at some point between about midnight and 1am, Mr Ward was unstable on his feet. At one point, he knocked into a table causing glasses to fall to the floor and break. He was told to sit down by one of the crew of the Alison Kay, which he did. By this stage Mr Ward had a cut or scrape above his eye and some blood on his hands. He did not to be aware of his injury and offered no explanation for it to the others.

[16] The Union Bar eventually closed for the night and everyone left. This was at some point between about 1am and 1.30am, probably nearer 1.30am than 1am. By this stage, Mr Ward had spent most of the previous six hours drinking. He had consumed at least nine pints of beer and some whisky. He had not eaten much at all in the previous twelve hours. While at the Union Bar on this second occasion Mr Smith consumed one pint of beer.

Return to the Quayside

[17] On leaving the Union Bar, the skipper, David Robertson went off with several crew members of the Alison Kay, at their invitation, to that vessel which was moored some distance from the Mizpah, perhaps about a quarter of a mile away. When he left, his son (Tom), Robert Shearer, Gary Smith and Mr Ward were still at the Union Bar or were in the process of leaving. Tom Robertson and Gary Smith went to a local takeaway to buy a carry-out. Mr Ward, who was unsteady on his feet, assisted by Mr Shearer, made his way back to the quayside where the Mizpah was berthed.

[18] As already noted the Mizpah was berthed with the stern almost parallel with the quayside wall. The port-side stern quarter was no more than about a foot; the starboard-stern quarter was between about two and a half to four feet from the quayside wall, probably nearer four feet than two and a half feet. The obvious point from which to go on board was at or about the port-side stern quarter.

[19] Of the Mizpah crew, Mr Ward and Mr Shearer were first to arrive back at the quayside. Mr Shearer and Mr Ward attempted to board the Mizpah via the Starlight Rays, an adjacent vessel berthed on the port side of the Mizpah. Mr Ward, aided by Mr Shearer, managed just to get on board the Starlight Rays but fell or slumped as soon as he had done so. Mr Shearer managed to get Mr Ward back on to the quayside, where he stood and staggered about on the quayside in the vicinity of the stern of the Mizpah. Shortly thereafter, Tom Robertson and Gary Smith arrived at the quayside. They went on board. Mr Shearer then boarded the Mizpah from the quayside

Last Few Minutes
[20] Tom Robertson shouted from the Mizpah to Mr Ward to come to the stern of the Mizpah. He did not do so, but continued to stagger about on the quayside. Tom Robertson then stepped back on to the quayside to assist Mr Ward. At this point, Mr Ward was not close to the water but several yards in from the edge of the quayside wall. Tom Robertson took hold of Mr Ward and spoke to him with a view to getting him on board. Tom Robertson could obtain no sensible response from Mr Ward. Mr Robertson turned and made his way to the Mizpah. He was just about to go on board and had his back to Mr Ward. At this point Mr Shearer and Mr Smith were on board the Mizpah. Mr Shearer saw what happened next. Mr Robertson and Mr Smith did not.

[21] Mr Ward had continued to stagger about, this time in the vicinity of the edge of the quayside. At a point about eight feet from the starboard quarter to the starboard side (to the right as one faces the Mizpah) Mr Ward staggered or swayed with his back to the sea, stooped a little and fell backwards into the water. All present must have heard the splash although none seemed to have seen Mr Ward enter the water, not even Mr Shearer. Mr Ward had never learned to swim. He was unable to save himself. At one point, Gary Smith threw or dangled a piece rope. Mr Ward was unable to catch hold of it. Neither Mr Shearer nor Mr Smith thought quickly enough to throw one of the several lifebelts which were on board. Whether that would have saved Mr Ward is, on the evidence, speculation. Mr Ward eventually disappeared under the water and drowned.

[22] Immediately before he fell from the quayside, Mr Ward was not attempting to board the Mizpah. Had he fallen into the gap between the starboard side quarter of the Mizpah and the quayside wall, he would likely have suffered a significant injury as a result of striking either the Mizpah or the quayside wall. No such injury was observed on his body when it was subsequently examined under the supervision of Dr Grieve (see below).

The First Rescue Attempt

[23] Bravely, Tom Robertson, who heard the splash but did not see Mr Ward fall into or enter the water, reacted by scrambling down some tyres on the quayside wall and jumped, fully clothed and still wearing his shoes, into the dark, cold harbour water in an attempt to rescue Mr Ward. Mr Ward was about a metre or so from the harbour wall. He made physical contact with Mr Ward but was unable to keep Mr Ward's head above water. They separated and Tom Robertson found himself in difficulties too. At this point, he was in the water on the starboard side of the Mizpah about three or four metres from the quayside wall. Mr Ward was closer to the wall and probably closer to the Mizpah. It need hardly be said that although there was no evidence of the depth of the harbour water, it was too deep for either of them to stand on the harbour floor or seabed.

The Second Rescue Attempt

[24] It is necessary to turn back the clock a little. In January 2005, Steven Ritchie, aged 19 years, was an apprentice mechanical technician. He now works offshore for BP. He was also a member of the local Lifeboat Rescue Service. He comes from a family of fishermen. In the early hours of the morning of 5 January 2005, he was in bed but could not sleep. He got up and drove to a 24 hour garage and then down to Peterhead harbour. He lived locally. He had no connection with the Mizpah and did not know the skipper or any of the crew.

[25] He drove past the Mizpah to the end of the Harbour, turned and drove back in the general direction of the Mizpah. He drove about 5 or 6 metres past the Mizpah and stopped. The driver side window of his car was down. He heard a splash. He reversed his car back perhaps eight or nine metres and stopped at a point about where the photographer must have been standing when photograph No 6/13/1 was taken. He got out of his car and went along the quayside to where the Mizpah was berthed. He saw Mr Ward and Mr Robertson in the water. They were about 2.5 metres apart Mr Ward was nearer the quayside than Mr Robertson. Mr Ritchie returned to his car and telephoned the emergency services. He removed some of his clothing, climbed half way down the harbour wall ladder and then jumped into the water on the starboard side of the Mizpah (the harbour wall ladder was several metres to the right of the starboard side of the Mizpah facing the water).

[26] Mr Ritchie decided to rescue the individual further away from the harbour wall (Robertson). He swam to Mr Robertson and brought him back to the harbour wall ladder. He could not persuade Mr Robertson to climb up the harbour wall ladder. Mr Ritchie put Mr Robertson over his shoulder and climbed up the harbour wall with Mr Robertson over his shoulder. He laid Mr Robertson down on the quayside and turned to look for Mr Ward. He asked Smith and Shearer (who were on board the Mizpah) where the other man (Mr Ward) was. They or one of them said right in front by which they meant a point near the quayside wall and the starboard stern quarter. By that stage Mr Ward was motionless in the water. Mr Ritchie dived under the water several times but could not find Mr Ward. Whatever current existed must have begun to carry Mr Ward away from the immediate vicinity of the starboard side of the Mizpah.

Emergency Services

[27] The police arrived at the scene at about 2am. PC Bosequet (who gave evidence) and her colleague, PC Duncan (who did not) were first to arrive. There being no sign of Mr Ward, the lifeboat was launched and, using search lights, Mr Ward's body was located and identified at about 3am. Without reference to any notebook, report or any contemporary record, PC Bosenquet said in evidence that she took a statement from Tom Robertson at the quayside; that he said that as Mr Ward tried to get on board the Mizpah he slipped or fell (she could not remember which) into the water. She took a similar statement from him at the local hospital. She also spoke to David Robertson and Stephen Ritchie, but again no contemporary written record was produced. Other officers spoke to the various crew members but there was no written record or report of these interviews produced at the proof. A report was submitted to the Procurator Fiscal but this was not produced. No criminal proceedings ensued.

[28] David Robertson heard of the incident on the radio while on board the Alison Kay. He ran to the scene. The police were already present and Tom Robertson was lying at the quayside. The police restrained Mr Robertson who was trying to reach his son. A short struggle ensued. Mr Robertson cannot be criticised for his conduct at this point. His reactions were natural. He feared for his son's life and wanted to be with him. Tom Robertson was taken to hospital by ambulance. His father accompanied him.

Subsequent Events

[29] Mrs Ward was informed of her husband's tragic death, when they called at her home at about 6am that morning.

Other Matters

[30] There were at least three lifebelts on the Mizpah. None was deployed that night.

[31] Photographs of the scene (No 6/13 of process), used extensively in the course of the proof were taken by the witness, Kevin Brett, a Scenes of Crime officer then employed by Grampian Police, at about 11am on 5 January 2005. The Mizpah was still moored at the same berth as it had been in the earlier hours of the morning

[32] Dr James HK Grieve, MB, ChB., FRCPath, Senior Lecturer in Forensic Medicine at Aberdeen University, was present at and carefully supervised a post mortem examination at Aberdeen Mortuary on 6 January 2005 carried out by a junior colleague, who was a middle grade trainee. Dr Grieve signed a report (No 6/4 of process), dated 26 January 2005, of that examination. Among other things, the report notes a very trivial graze to the right eyebrow. This was consistent with contact with a hard surface. The report, he said, was a typical report of a man who had drowned in salt water.

[33] Professor Alexander Forrest gave evidence about the effects alcohol. He is a former Consultant in Clinical Chemistry and Forensic Toxicology to the Central Sheffield Teaching Hospitals NHS Foundation based at the Royal Hallamshire Hospital in Sheffield; he was also Honorary Professor of Forensic Chemistry at the University of Sheffield. He has had considerable experience in the toxicological investigation of fatal road traffic accidents. He had been engaged by the defenders to review the circumstances surrounding Mr Ward's death. He reviewed various documents and produced a report in December 2005 (No 7/6/ of process). He noted that the post mortem report disclosed a blood alcohol concentration of 271 milligrams of alcohol per 100 millilitres of blood with a urine alcohol concentration of 455 milligrams of alcohol per 100 millilitres of urine. In his report he stated that this could only be associated with the consumption of a large amount of alcohol and would be associated with impairment of balance, co-ordination, judgement and impairment of the ability to take appropriate action (when in water) to stay alive. In particular, he noted, in evidence, that night vision was impaired; and that there was a higher risk of dying in water when drunk. A drunk man is less likely to take steps to save himself. He also described the impairment of various faculties such as balance, co-ordination, judgment of distance and direction. His overall conclusion was that while the medical cause of death was drowning as Mr Ward did not drink himself to death, his intoxication with alcohol made a very significant contribution to the sequence of events which led to death.

[34] On behalf of Mrs Ward, there was lodged a letter from the Procurator Fiscal at Peterhead to the defenders dated 4 April 2005. The purpose of lodging this letter was to refer to the account in the letter of what happened to Mr Ward. The letter states inter alia that "It appears he slipped on rubber tyres that were lining the harbour wall and fell into the water". The evidence I heard does not support that statement. However, the letter also describes what happened as a "tragic accident".

Submissions

[35] Both counsel produced written submissions which they amplified at the hearing on the evidence. What follows is but a summary of their carefully presented submissions and arguments.

(a) Pursuer

[36] Mr Benyon began by referring to what he considered to be the relevant principles of contractual construction under reference to McBryde on the Law of Contract in Scotland, 3^rd Edition paragraphs 8.06, 8.08, 8.10, 8.12 and 8.17, and to MacGillivray on Insurance Law 10^th Edition paragraphs 11.6-8. He emphasised the need to keep in mind the precise wording of the contract which raised four issues of fact, namely (a) bodily injury - here, he said, there was trauma from an external source, (b) violent - reference was made to Reynolds v Accidental Insurance Co 1870 22 LT 820, (c) external means and (d) independently of all other causes. He referred to Clarke, the Law of Insurance Contracts 4^th Edition pages 530-537, 554 & 557, Macleod by New Hampshire Insurance Co 1998 SLT 1191 at 1195L and 1196C-D, Lawrence v Accidental Insurance Co 1881 7 QBD 216, and MacGillivray at paragraph 25.21 for discussion of the meaning to be given to accident and accidental.

[37] On the evidence, Mr Benyon submitted that (i) Mr Ward entered the water either at a gap between the stern of the Mizpah and the harbour wall, or directly against or near to the starboard edge of the stern. He relied, particularly on the CCTV footage timed at about 01.49 to 01.51 and the evidence of Mr Ritchie. He submitted that Mr Ward died for the following reasons:- (i) he was a complete non-swimmer, (ii) Tom Robertson, Gary Smith, and Robert Shearer were to intoxicated to make use of and throw in the lifebelts which were readily available, (iii) the rescuer, Mr Ritchie, elected to rescue Tom Robertson first of all; had Mr Ritchie elected to rescue Mr Ward then there was every likelihood that Mr Ward would have survived. The consumption of alcohol by Mr Ward was not a cause of the drowning or in any event was not a relevant or proximate cause of his death by drowning. Thus, on the evidence, the pursuer has established that the death of Mr Ward was due to accidental bodily injury, namely drowning in the salt water of Peterhead Harbour. A reasonable and ordinary bystander (adopting the test in Macleod) would have observed that Mr Ward was not able to remain above the water because he was unable to swim, was not rescued and had not been thrown a lifebelt. On no view, could his drowning be described as an intended result or consequence on the part of Mr Ward. Adapting the reasoning in the case of Lawrence, the clear and proximate cause of his death was accidental drowning. The high level of alcohol which it was accepted was present within Mr Ward at the relevant time was simply not material to the proper construction and application of the policy of insurance and could not be relied upon by the defenders to avoid liability.

[38] Mr Benyon attacked the reliability and credibility of the evidence of the skipper and members of the crew of the Mizpah on various grounds, and, in particular, that they had all consumed excessive quantities of alcohol in the course of the evening in question.

[39] There was no dispute on quantum (£36,000 per paragraph 2 of the Joint Minute). On the question of interest, Mr Benyon initially submitted that interest at the judicial rate should be payable from the date when the claim was rejected namely 12/4/05; the defenders can have had no proper basis for withholding payment from that date. He referred to McBryde at paragraph 22.126 page 670. His ultimate position was that interest should be payable from the date of Mr Ward's death.

(b) Defenders

[40] Mr Upton submitted that Mr Ward's death was not caused by accidental means within the meaning of the policy. The onus was on the pursuer. Mr Ward's own reckless conduct was the cause. Injury or death which is an expected or probable result of reckless conduct is not accidental. It could not be said that drowning is not a natural or probable consequence of a non-swimmer choosing to stagger and stumble in a state of extreme intoxication in close proximity to an unguarded drop into deep, cold water. Mr Ward knew or ought to have known that he was taking the risk that his conduct would and in any event might cause him bodily injury. He relied on Clarke, 5^th Edition paragraphs 16-3A, 16-3C3, and 17-5A,C,E, Dhak v Insurance Co of North America (UK) Ltd 1996 1 WLR 936 (C.A.) at 639-641, De Souza v Home & Overseas Co Ltd 1995 LLR 453, Clidero v Scottish Accident Insurance Co. Ltd 1892 19R 355 at 362, MacGillivray at paragraph 25.33, 34, Hamlyn v Crown Accidental Insurance Co 1893 1 QB 750, Stair Memorial Encyclopaedia of the Laws of Scotland volume 12, paragraph 844 at page 424. Even if the evidence was equally consistent with the death having resulted solely and directly from outward violent and visible means that can be described as accidental, and with its not having so resulted accidentally, then the pursuer's case must still fail, there being no presumption that an event was an accident.

[41] Mr Upton made very detailed submissions on the evidence. In essence, he submitted that (i) Mr Ward was staggering around close to the edge of the quayside and fell into the water at a point about eight feet from the starboard quarter of the Mizpah, (ii) Mr Ward was not attempting to embark on the vessel when he fell into the water, (iii) he had no reason to do so, (iv) he was drunk, (v) the hearsay evidence of PC Bosenquat of what Tom Robertson said to her about what happened, albeit given in good faith by the officer, was unreliable in the circumstances, and Tom Robertson's evidence at the proof should be preferred.

[42] As for the policy exception, Mr Upton submitted that Mr Ward's death was caused by or resulted from intoxicating liquor taken by him. While accepting that the onus fell on the insurers to prove the facts to bring the casualty within the exception (Clarke, paragraph 16-3B2), he submitted that as, on the evidence, Mr Ward was very drunk stumbled and fell into the sea, an inference or presumption arises (Dickson on Evidence volume 1 paragraphs 35, page 32-33, paragraph 109, page 93, and paragraph 112, page 96) that he did so because he was intoxicated. Mr Ward's blood/alcohol level and the unchallenged evidence that such a level would impair a man's judgment and balance places the onus of proof on causation on the pursuer. The pursuer led no evidence to rebut the presumption. In any event, on the evidence it was plain that Mr Ward's death was caused by and resulted from intoxicating liquor that he had taken with the meaning of the policy exception clause. Reference was made to Clarke paragraph 19-2C page 570, paragraph 25-4, Leyland Shipping Co Ltd v Norwich Union Fire Insurance Society Ltd 1918 AC 350, Pawsey v Scottish Union & National Insurance Co 1907 reported in Welford & Otter-Barry, Fire Insurance (2^nd edition) page 505-6, and Ivamy's General Principles of Insurance Law (6^th edition) pages 415-417)

[43] On the question of interest, Mr Upton submitted that if the defenders were liable then interest was due from the date of citation, being a judicial demand for payment, by which date it could be said that the defenders were wrongfully withholding payment. He drew my attention to but did not discuss the following:-Scottish Law Commission, Discussion Paper on Interest on Debt and Damages No 127 (January 2005 paragraphs 2.23 and 6.10, Napier v Gordon 1831 5 W & S 745 (HL) at 758, Blair's Trs v Payne 1884 112R 104 at 110, Greenock Harbour Trs v Glasgow & SW Ry Co 1909 2 SLT 53 (HL) at pp56-7, Somervell's Tr v Edinburgh Life Assurance Co 1911 SC 1069 at 1072, FW Green & Co Ltd v Brown & Gracie Ltd 1960 SLT 43 (HL) at 44, Hunter v Livingston Dev. Corp 1984 SLT 533 at 535, Trans Barwil Agencies (UK) Ltd v John S Braid & Co Ltd (No 2) 1990 SLT 182, and Wilson Debt (2^nd ed) para 11.7

Discussion of Evidence

[44] This was an emotionally charged proof. Mrs Ward was naturally upset while giving evidence but she found the fortitude to remain in court to hear the other witnesses give evidence. Gary Smith, and Tom Robertson broke down at some point while giving evidence. There is no shame in this. Witnessing the moment of death of one's son or a friend is a deeply harrowing experience. Recounting that experience in public is obviously distressing.

[45] I found all the witnesses to be generally reliable and credible. As for the skipper and crew, the evidence of each was generally consistent with the evidence of the others with minor differences of detail which are to be expected. They all had a fair amount to drink that night and none would ever expect to have to recall a few years later the detail they were asked about in the course of their evidence. Mr David Robertson said that he played down the amount of drink consumed by Mr Ward so as to "cushion the blow" for Mrs Ward. I believed him. He also frankly stated that he was very disappointed to receive a writ in his capacity as master of the Mizpah.

[46] There were some discrepancies among the accounts of the various witnesses about the order of events in the course of the evening, such as who left the Mizpah with whom, timing and who left Mambo's first. That is to be expected. What was abundantly clear on the evidence was that they all consumed a significant amount of alcohol, some more than others and Mr Ward more than most. In any event, for one reason or another, he was suffering to the greatest extent from the effects of his consumption of alcohol that evening.

[47] Dr Grieve and Professor Forrest gave their evidence with great care and clarity. Their reliability as experts is not in doubt.

[48] Whatever Tom Robertson may have told the police in the early hours of the morning of 5January, his evidence at the proof was consistent with the other evidence I heard. Whether he was still in shock when speaking to the police or whether the police misinterpreted his evidence does not, standing all the other consistent evidence, which I accept, matter at the end of the day.

[49] The detail of the precise times and who went where with whom, and indeed the precise amount of alcohol consumed by Mr Ward that evening are minutiae which are, ultimately, not critical. What is relevant and incontrovertible on the evidence is that by the end of the evening Mr Ward was unfortunately not only drunk but very drunk as he made his way back to the Mizpah. When he returned to the quayside he was in a very drunken state and condition. He was swaying and staggering about. There is no need to extend the length of this Opinion by quoting from the overwhelming evidence of his unfortunate state and condition.

[50] In summary, Mr Ward returned to the Mizpah after an evening of heavy drinking. While alcoholic beverages have a varying effect on different individuals, it is plain on the evidence that Mr Ward had taken intoxicating liquor to an extent which disturbed the balance of his mind or the quiet calm, intelligent exercise of his faculties. As a result of his inability through the excessive consumption of alcohol properly to control his movements, he staggered, stumbled or fell from the quayside in the dark into the cold dark water of the harbour and drowned. He was not attempting to board the Mizpah immediately before he fell into the water.

CCTV Footage

[51] This was transferred on to a DVD, played on a large screen in court and operated by a laptop computer. The time was displayed sometimes on the footage, but not always. There was an indexing system displayed by the computer's software program. However, a different software program was used on different days in court which added to the difficulties. The footage was difficult to follow although parts had been highlighted or bubbled. Although much time was taken with the witnesses watching and commenting on the footage it is not necessary to refer to such evidence in detail. The precise location of the camera was not identified and no evidence was given about the camera, its operation or the transcription of the footage on to DVD. Both counsel, however, accepted the genuineness and authenticity of the footage.

[52] The footage does nevertheless show inter alia (i) that in order to board the Mizpah that night it was necessary to step down from the quayside to the vessel, (ii) the arrival and presence of Mr Ritchie's car (1.46.-1.49), (iii) Mr Ritchie appearing to phone the emergency services while standing by his car (1.53.19 approx), and (iv) the arrival of police at about 1.56.36 approx. The footage also shows various figures from time to time. One of the difficulties is that much of the important action takes place at the bottom right hand corner (and beyond) of the footage as depicted on screen whether that is a large screen such as the screen used in court, or a small computer monitor. The footage was less grainy when viewed on a laptop or monitor.

Photographs 6/13 of process

[53] Photographs are notorious for extending the length of proofs and creating rather than resolving doubts and ambiguity. Witnesses find it hard to relate what they remember to what they see in the photographs and even harder to describe what they see so that it can be understood with precision. Eventually, to expedite matters, some witnesses marked some of the photographs with a pen. One point which came out in evidence e.g. the evidence of David Robertson that the Mizpah was at a lower in the water between 1.30am and 2am on 5 January, than when the photographs were taken later that morning at about 11am. Thus, in the early hours of the morning boarding the Mizpah involved stepping down (as the CCTV footage also shows) from the quayside to the vessel. This has to be kept in mind when viewing the photographs.

Conclusions

Evidence

[54] My factual findings and conclusions on the evidence are set out above.

Accidental means
[55] Mr Upton argued that Mr Ward's death was not caused by accidental means. In my opinion, it is plain that what occurred was a tragic accident. Any reasonable person of ordinary intelligence considering the facts and circumstances as I have found them to be and set out above would reach that conclusion. Any other conclusion is absurd. Prima facie therefore Mr Ward's death was caused by accidental means within the meaning of the Policy. The authorities cited to me do not require a different conclusion.

[56] In Macleod, the pursuer strained his back while throwing a wheel into the back of a pickup truck. The policy under which he made a claim defined bodily injury as that caused by accidental, violent, visible and external means. Lord Nimmo Smith, rejecting the defender's argument at procedure roll that the means by which the pursuer was injured were deliberate, intended, probable and foreseeable, held inter alia, that accidental should be given its ordinary meaning (at 1195L); the crucial question was whether the means of causation could properly described as accidental. Lord Nimmo Smith carefully analysed the principal authorities including Clidero, Connelly, Dhak, Hamlyn and Glenlight. I gratefully adopt that analysis. His Lordship observed that one way of looking at the matter was to ask whether an onlooker of ordinary intelligence would regard the events as an accident. I agree. This approach is consistent with the modern approach to the principles of construction applicable to commercial contracts, which include insurance contracts (McBryde paragraphs 8-10 and 8-12; MacGillivray page 277 section 11-1). I also agree that the question is not whether the action which resulted in the outcome was deliberate, but whether the outcome was intended (1196C). This approach emphasises the nature of the final result, although the chain of events leading thereto (sometimes referred to as accidental means) must also be considered. The distinction between accidental means and accidental results, if any (cf Glenlight at page 245), is often difficult to articulate and apply in practice. In Glenlight, where a passenger on a ferryboat drove his car along the deck of the vessel, over the loading ramp and into the sea, and drowned, in the mistaken belief that the ferryboat had reached the pier, Lord Hunter described these circumstances as an accident and the means directly causing death as accidental (page 242 column 2). Lord Robertson reached the same view (243 column 2). Lord Stott described an accidental occurrence as an occurrence brought about by accidental means (at page 245 column 1). He saw no substance in a distinction between an accidental injury and an injury caused by accidental means.

[57] While here, it might be said that Mr Ward chose or intended to get drunk, he did not intend to fall into the harbour; although a possible outcome, it can hardly be said that it is the natural and probable result of an evening's heavy drinking in Peterhead. I find it difficult to classify what happened as the taking of a calculated risk by Mr Ward that he if he drank heavily he might fall into the harbour and die (cf Dhak at 949-950).

[58] Mr Benyon referred to Lawrence, which was not cited in Macleod. There, the deceased had a fit while waiting at a railway platform, fell on to the track and was killed by a passing train. The policy contained an exception for cases of death arising from inter alia fits. In a Special Case before Denman J and Watkins William J, the former held in favour of the deceased's representative on the basis of an earlier case in which it had been decided that where a man, while crossing a river, who was seized with a fit, fell and drowned, the death did not arise from the fit and so the policy exception for such disease did not apply and the insurers were liable; he also relied on the precise wording of the policy Watkins William J adopted a more principled approach. He held that the fit was not the proximate and immediate cause of death. Therefore death did not arise from the fit. In particular, his Lordship looked only at the immediate and proximate cause of death at page 221) and held that what occurred did not arise from a fit. That approach does not sit happily with Leyland Shipping and the modern approach to causation.

[59] In Reynolds, the deceased while bathing in a very shallow pool suddenly became insensible for unexplained reasons, fell over and drowned. In rejecting the argument that the death was the result of the fit and so not an accident within the meaning of the policy in question, the court held that the circumstances amounted to an accident. No question of an exception to the policy arose for consideration in that case. The report is very brief and the judgments give no reasons for the conclusion.

[60] Here, Mr Ward did not intend to fall into the water. No one suggests that he intended to commit suicide. Whether he thought he was attempting to board the Mizpah is unclear. What occurred at the quayside was obviously a mistake on his part, an error of judgment or aberration. However reprehensible, anti-social or foolish it may be to indulge in an evening's heavy drinking as described above, that does not change the characterisation of what befell Mr Ward from tragic accident to deliberate, or even reckless conduct.

Outward violent and visible means

[61] Mr Benyon referred to MacGillivray paragraph 25-21 to support the proposition that death caused by drowning should be held to be accidental or a death caused by violent accidental external and visible means. I agree with the proposition and the text cited.

The Policy Exception

[62] The defender's submission was that Mr Ward's death was caused by or resulted from intoxicating liquor taken by him. If so, the policy exception quoted above applies and liability is elided. If one asks how Mr Ward died, the answer is simple. He drowned. If one asks why he died, the answer is more complex. Various facts and circumstances must be examined and weighed in the balance. It is important to focus on the wording of the policy. As quoted above the Exclusion Clause covers "accidental bodily injury caused by or resulting from ...Intoxicating liquor ....taken by the Insured".

[64] Mr Ward consumed a large quantity of intoxicating liquor in the hours leading up to his death. He was unsteady on his feet in the moments before death because of the quantity of alcohol he had taken. His judgment must have been impaired. His balance and other faculties must have been impaired or disturbed. He stood at the edge of quayside with his back to the water. It is most unlikely that a man whose judgment had not been thus impaired would have done so. Mr Ward stumbled, or slipped and fell into the water. Any man in full control of his faculties and senses does not normally stumble, slip or fall in such circumstances. It must be presumed or inferred that in the absence of other acceptable evidence, the cause of Mr Ward's fall into the water which led to his death was the effect on him that night of the excessive quantity of alcohol taken by him. Presumptions or inferences arising from the evidence may, of course, be rebutted. However, there is no evidence in this case which rebuts the presumption or inference. As Dickson observes (volume 1 paragraph 112 page 96) presumptions emerge daily in individual cases and are suggested by ordinary experience. Here, there is no other explanation offered for Mr Ward's behaviour in the last few minutes of his life.

[65] While the immediate cause of death was drowning, the event which is nearest in time to the death is not necessarily the real, effective, proximate or predominant cause. The net or web of causation must be examined. The various events, strands, forces and influences must be weighed. (Leyland Shipping Company Ltd at page 369-370). Here, the strongest strand which permeates the web of causation, which has by far the greatest force and influence, is Mr Ward's state and condition immediately before he fell into the harbour. That state and condition was brought about by his consumption of intoxicating liquor. The real cause of Mr Ward's death, the reason why he died, was, in my opinion, his excessive consumption of alcohol. The effect of the intoxicating liquor taken by him dominated and was the reason for his behaviour in the course of the last minutes of his life. Put another way, the taking of intoxicating liquor by Mr Ward set in motion a train of events which caused or resulted his tragic death. I should add that I consider the fact that Mr Ward had not learned to swim was a relatively neutral factor given his state and condition. Tom Robertson could swim, yet he had to be rescued.

[66] Unless the policy exception is construed as applying only to alcoholic poisoning or choking through the consumption of alcohol, the circumstances as I have found them to be, fall within the policy exception or exclusion clause. I can find no reason so to interpret the plain words of the relevant part of the exception clause. The exception applies and the claim must therefore fail.

Interest

[67] Neither party presented any detailed submission on interest. None of the authorities mentioned in the written submissions of counsel was discussed either at all or in any detail. The question of interest does not arise in the light of my conclusions. It would be unwise to say very much about the issue except to note that the normal rule suggests that, in the absence of contractual provision declaring otherwise, interest would be due from the date of citation but I note that in Macleod interest was sought from the date of the accident (at 1192E); the question of interest was not, however, discussed.

Result

[68] Mrs Ward's claim fails. I shall sustain the second, third and fifth pleas-in-law for the defenders, repel the pursuer's pleas-in-law and assoilzie the defenders.

[69] As for expenses, on which counsel have previously addressed me at the hearing on evidence, I certify Dr Grieve and Professor Forrest as skilled witnesses; there was no dispute about this. The first day of the proof had to be adjourned in the circumstances described at the beginning of this Opinion. Both parties took the opportunity to fine tune their pleadings. Late productions were also lodged by each party with the consent of the other. I consider that no expenses should be found due to or by either party in relation to the first day of the proof as both parties took advantage of the time lost. The pursuer is entitled to the expenses of the amendment procedure relating to the Minute of Amendment for the defenders (No12 of process) and the Answers (No 14 of process) as adjusted. Quoad ultra, the defenders are entitled to the expenses of process save insofar as already dealt with.