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Cite as: [2019] ScotCS CSIH_9, 2019 GWD 8-106, 2020 SCLR 215, 2019 SLT 483, 2019 SC 379, [2019] CSIH 9

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Brodie

Lord Drummond Young

[2019] CSIH 9

PD4/16

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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totalling £287,438. The policy provides that the fourth defenders will indemnify the second

defenders against all sums which they shall become legally liable to pay as “compensatory

damages ... arising out of accidental ... injury to any person”. There are a number of express

exclusions. One of these (clause 14) is liability arising out of “deliberate acts wilful default

or neglect by the INSURED any DIRECTOR PARTNER or EMPLOYEE of the INSURED”

(the clause contains no punctuation). Liability arising out of wrongful arrest is also initially

excluded (clause 20), but then included by extension. The relevant clause (3) provides that

indemnity will be provided for any liability “to pay as compensatory damages arising from

or out of WRONGFUL ARREST”. It is defined as meaning:

“any unlawful physical restraint by one person on the liberty of another and includes

... assault and battery committed ... at the time of making or attempting to make an

arrest or in resisting an overt attempt to escape by a person under arrest before such

person has been or could be placed in the custody of the police ...”.

Liability in respect of a wrongful arrest is limited to £100,000.

The Lord Ordinary’s decision

[6] The fourth defenders maintained that they were not liable to indemnify the second

defenders in respect of the death of the deceased because the death had been caused by a

“deliberate act” on the part of an employee; that is an assault (of which the first defender

had been subsequently convicted). Alternatively, what had been involved had been a

wrongful arrest and liability was limited to £100,000. The pursuer submitted that the onus

was on the fourth defenders to show that the exclusion clause applied. It ought to be

construed contra proferentem, since there was ambiguity about what acts should be

considered to be deliberate.

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[7] The Lord Ordinary recognised that what he required to decide was a pure question

of construction. He reasoned that it was important that the action was a derivative one

arising out of the death of the deceased. Its basis was a failure on the part of the first

defender to exercise reasonable care for the safety of the deceased; ie fault and negligence.

The pursuer did not seek to prove a wilful act. Applying the contra proferentem rule, and

adopting the approach in Hawley v Luminar Leisure [2006] PIQR P17, the exclusion clause

only applied when the outcome giving rise to liability, ie the death, was the intended

objective. In this case, death had been an unintended consequence of the assault. Intention

to kill was not irrelevant. The Lord Ordinary disagreed with the view of the Court of

Appeal of England and Wales in CP (a child) v Royal London Mutual Insurance Society [2006] 1

CLC 576 (at paras 13-17) that a reckless act could be classed as wilful.

[8] There was no suggestion in the pursuer’s pleadings that the deceased had been

unlawfully arrested. A case of that type could not have been brought by the pursuer in her

personal capacity. Accordingly, the Lord Ordinary held that the fourth defenders were

obliged to indemnify the second defenders in respect of their liability to the pursuer arising

out of the death. This right had been transferred to, and vested in, the pursuer in terms of

sections 1 and 3 of the 2010 Act.

Submissions

Fourth Defenders and Reclaimers

[9] The fourth defenders submitted that, as the case proceeded under the 2010 Act, the

pursuer stepped into the shoes of the second defenders, as the insured. All of the defences,

which would have been available against the second defenders, were available against the

pursuer (The “Padre Island” [1984] 2 Lloyds Rep 408 at 414; Post Office v Norwich Union Fire

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Insurance Society [1967] 2 QB 363 at 373-4, 376). The Lord Ordinary had attached weight to

the way in which the pursuer had opted to plead her case in negligence. It was the policy

that determined liability and not the manner in which the case had been pled.

[10] In relation to the Lord Ordinary’s disagreement with the dicta in CP (a child) v Royal

London Mutual Insurance Society (supra), in the field of insurance law, and especially as this

policy had an English choice of law clause, a decision of the Court of Appeal ought to have

been regarded as highly persuasive (Cowan v Jeffrey Associates 1998 SC 496, at 502-3). The

courts in England and Wales had a uniform approach to the phrase “wilful default or

neglect”.

[11] 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. In the event of ambiguity, the construction more

favourable to the insured should be adopted (Yorkshire Water v Sun Alliance & London

Insurance [1997] CLC 213 at 221; see also Arnold v Britton [2015] AC 1619 at paras 15-20).

[12] On the proper interpretation of “deliberate acts wilful default or neglect”, the facts in

Hawley v Luminar Leisure (supra) were similar, but the wording of the policy, which covered

“accidental bodily injury”, was different. In Hawley there was no exclusion of deliberate

acts. The acts of the doorman had to be construed from the perspective of the insured

employer, to whom the employee’s state of mind could not be attributed. The policy in the

present case had probably been drafted with Hawley in mind. In Interpreting “wilful act”,

CP (a child) v Royal London Mutual Insurance Society (supra) had focussed on the intention of

the person to cause the particular damage sustained. What was required was something

blameworthy; not just a deliberate or intentional act. Recklessness could suffice. In the

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present case, the first defender’s actions had been reckless, given his training not to adopt a

choke hold. In In re City Equitable Fire Insurance Co [1925] 1 Ch 407, “wilful misconduct”

was contrasted with “accident or negligence” and likened to “reckless carelessness” (ibid at

433 and 434, 517; see also Kenyon Son & Craven v Baxter, Hoare & Co [1971] 1 Lloyd’s Rep 232

at 240; Swiss Bank Corp v Brink’s-MAT [1986] 2 Lloyd’s LR 79 at 93). Default or neglect

involved failure or omission. Deliberate was a lower threshold than wilful. It was sufficient

if the act was blameworthy or reckless.

[13] There was a blameworthy act here as the first defender had been convicted of

assault. Whether the assault had been intended to kill was irrelevant. The first defender had

committed a deliberate act which had caused the death. There was no liability for such an

act unless it came within the wrongful arrest extension. If the act was not to be classified as

deliberate, it was, in any event, within the extension as the first defender had been

restraining the deceased pending the arrival of the police. Where both the exclusion and the

extension applied, the clause limiting liability to £100,000 would operate.

Pursuer and Respondent

[14] The pursuer accepted that she had stepped into the second defenders’ shoes for the

purposes of the action. The words in the policy ought to be construed according to their

ordinary meaning, in their context. The principles in Yorkshire Water v Sun Alliance & London

Insurance (supra) were not in dispute. It was accepted that the cause of death was the first

defender’s assault on the deceased, but not that the proximate cause of the pursuer’s claim

was a wrongful arrest. Wilful had to mean deliberate and not merely reckless. The claim

here was not for damages arising out of a wrongful arrest but for a negligently caused death.

The way in which the claim had been presented was relevant (Bell v Lothiansure 1993 SLT

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421 at 427). The Lord Ordinary had been entitled to disagree with the comments in CP (a

child) v Royal London Mutual Insurance Society (supra). Wilful could mean different things in

different contexts. There was no finding of recklessness by the Lord Ordinary. The

sentencing statement had described the first defender’s actings as badly executed and not

badly motivated.

[15] If the fourth defenders were correct and all assaults were excluded, the policy would

have little value. The definition of wrongful arrest assumed that it was unlawful. This was

not a wrongful arrest. The Lord Ordinary had been correct in his approach.

Decision

[16] The principal question is whether, as a matter of the proper construction of the

insurance contract, the death of the deceased, which (despite the jury’s verdict) was

admittedly a result of the first defender’s assault upon him, was caused by the “deliberate

acts wilful default or neglect” of the first defender.

[17] There is no dispute about the approach to construction which must be taken. The

principles are summarised in Yorkshire Water v Sun Alliance & London Insurance [1997] CLC

213 (Stuart-Smith LJ at 221) viz.:

“1. The words of the policy must be given their ordinary meaning and reflect the

intention of the parties and the commercial sense of the agreement. They must be

construed in their context…

2. A literal construction that leads to an absurd result or one otherwise

manifestly contrary to the real intention of the parties should be rejected, if an

alternative more reasonable construction can be adopted without doing violence to

the language used.

3. In the case of ambiguity the construction which is more favourable to the

insured should be adopted; this is the contra proferentem rule.”

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[18] One important element of the context in this case is simply that this is an insurance

contract. Its focus is on the loss claimed and whether it is covered by the policy. The loss is

the death of the deceased. The question is whether it is covered, but the answer cannot,

contrary to the Lord Ordinary’s reasoning, depend on the manner in which the case is pled

(eg 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.

[19] The other important contextual element is that the policy was undoubtedly intended

to cover the acts and omissions of the door stewards who were employed by the second

defenders. The second defenders were engaged in the business of door security. The

actions of their employees were thus largely those of their door stewards. Although some

purely accidental incidents might occur as a result of carelessness, the public liability cover

which would obviously be required was that which would deal with incidents at the doors

of bars. These would commonly involve acts preventing persons entering, or removing

them from, the premises; all of which would be almost bound to involve deliberate physical

acts of one kind or another.

[20] The general cover offered in the policy is “accidental injury”. That is contrasted with

the excluded “deliberate acts wilful default or neglect”. In order to understand what is

meant, the nature of these contrasting descriptions has to be considered. The cases cited do

throw some light on the matter, but each is distinguishable on its facts, notably the wording

of the particular policy.

[21] Hawley v Luminar Leisure [2006] PIQR P17, so far as relevant, turned upon looking at

“accidental … injury” from the perspective of the assured and not the assured’s employee

(Hallett LJ at 237). A deliberate punch by an employee was “accidental” within the meaning

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of the policy, rather than a deliberate act of the assured; it being a basic rule of insurance law

that loss caused by the assured’s deliberate or wilful acts are not normally covered. This is

helpful in explaining that what clauses of the type under consideration are generally

intended to exclude are losses deliberately inflicted by the person who has taken out the

policy. No doubt this could include losses created by deliberate acts by an employee who is,

or is instructed by, the controlling mind of the company. This is quite different from a loss

which is accidentally caused, albeit by a deliberate physical act.

[22] CP (a child) v Royal London Mutual Insurance Society [2006] 1 CLC 576 is also

instructive. The policy excluded liabilities arising from “any wilful, malicious or criminal

acts”. The act, which had caused a partly derelict mill to burn down, had been that of an

11 year old setting fire to a den which he had built in the mill. He had not intended the mill

to burn down. It was held that the use of the words “malicious” and “criminal” lent colour

to what was meant by “wilful”. What was contemplated was a “blameworthy” act involving

something more than a deliberate or intentional act. As Tuckey LJ said (at para 15):

“… [S]omething more than a deliberate or intentional act is contemplated. If that is

all the word meant, the wide cover apparently provided by the extension would

largely be taken away by the exclusion. Most acts, including negligent acts, are

deliberate and intentional”.

Recklessness as to the consequences might suffice, but that had not been made out in the

circumstances. The focus was on conduct deliberately intended to cause the loss for which

indemnity was claimed. That is the correct approach in the context of an insurance contract.

What is being excluded is an act deliberately causing particular losses otherwise covered by

the policy.

[23] 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

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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.

[24] I reserve my opinion on whether recklessness may be sufficient for the purposes of

the exclusion clause. Suffice it to say, the dicta in CP (a child) v Royal London Mutual Insurance

Society (supra) may be highly persuasive where there is a deliberate act which courts obvious

dangers leading to losses for which there is liability under the policy. The Lord Ordinary

has not made a finding of recklessness. Although it may be possible to argue a case for

recklessness based on the trial judge’s description of the first defender’s acts as objectively

dangerous, her sentencing statement did not extend that far. The description of the first

defender’s acts as badly executed, rather than badly motivated points away from their

amounting to recklessness as that concept is normally understood.

[25] The wrongful arrest exclusion and extension clauses do not apply to the present

circumstances. Wrongful arrest, or detention, is a claim for damages to compensate for an

interference with, and loss of, a person’s liberty and any consequent affront to the person’s

dignity (see generally Norrie: Interference with Liberty: Wrongful Detention in Stair Memorial

Encyclopaedia Vol 15 Obligations para 435 et seq). The losses claimed are not of this type.

There is no basis upon which a claim for wrongful arrest might have been made. In all these

circumstances, the reclaiming motion should be refused and the court should adhere to the

interlocutor of the Lord Ordinary dated 5 April 2018.

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Postscript

[26] The parties are to be commended for agreeing so much of the evidence. This

obviated the necessity of hearing oral testimony. However, the case raises an issue about

the appropriate form of a joint minute. The manner in which the trial judge’s sentencing

statement was dealt with was to agree it as “an accurate summary of the evidence” at the

trial. The effect of such an agreement is uncertain. The fact that the statement is an accurate

summary of the evidence given in the course of the criminal trial is, at least strictly,

irrelevant. What seems to have been intended was an agreement that the statement was an

accurate account of the facts surrounding the death of the deceased. If that is correct, the

joint minute should have so stated.

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Brodie

Lord Drummond Young

[2019] CSIH 9

PD4/16

OPINION OF LORD BRODIE

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

Nature of the action

[27] This is an action for damages proceeding under chapter 43 of the Rules of Court but,

more important for present purposes, it is also proceedings to enforce what are said to be

rights against an insurer as provided for by section 1(3) of the Third Parties (Rights against

Insurers) Act 2010. As is familiar, sections 1(3) and 3 of the 2010 Act permit a third party to

bring proceedings to enforce the rights of a relevant person under a contract of insurance

without the relevant person’s liability to pay damages to the third party having been

Page 14 ⇓

established, and that by way of declarator as to the insurer’s potential liability to indemnify

the relevant person. The pursuer is such a third party. It is admitted that the second

defenders are relevant persons for the purposes of the 2010 Act. The fourth defenders are

the insurer.

[28] There were originally four defenders convened as parties to the action. There are

now two. The first and third defenders were assoilzied on 28 June 2017. The remaining

defenders are therefore the second defenders and the fourth defenders. The second

defenders have not entered the process.

[29] The second defenders are a limited company which formerly carried out business as

manned guarding and door security contractors. They are however now in creditors’

voluntary liquidation. In so far as the action relates to damages the pursuer, as an

individual and the legal representative of her son, seeks to establish the liability of the

second defenders to make reparation to her in respect of her loss and injury arising from the

death of her late husband, the deceased. She founds on the fault of the first defender whom

it is admitted was at the material time acting in the course of his employment with the

second defenders as a door steward at licensed premises in Aberdeen. It is admitted that the

second defenders are vicariously liable for the acts and omissions of the first defender whilst

acting in the course of his employment with them. The fourth defenders were at the

material time the public liability insurer of the second defenders in terms of policy number

SEC-HAN12/1250 (“the Policy”). It is the pursuer’s contention that the second defenders’

vicarious liability to the pursuer by reason of the fault of the first defender is a risk insured

by the Policy. As their primary position the fourth defenders dispute that they have any

liability to indemnify, given the circumstances of the case. As their alternative position the

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fourth defenders contend that their obligation to indemnify the second defenders for their

liability to the pursuer is limited to the sum of £100,000.

[30] On 28 June 2017 proof was allowed, to proceed on 3 October 2017 but restricted to

the issues of liability, contributory negligence and the indemnity of the second defenders by

the fourth defenders. In para [3] of his opinion the Lord Ordinary describes the case as

having called before him for debate. The hearing before the Lord Ordinary was no doubt in

substance a debate but, the interlocutor of 4 October 2017 making avizandum records the

Lord Ordinary as “having taken the proof as adduced” and that, strictly, is what occurred.

No oral evidence was led but parties had entered into an extensive joint minute of

agreement which, together with the admissions on Record, was intended to provide the

agreed factual circumstances by reference to which the Policy might be construed and

applied. In the course of his submissions before this court Mr McBrearty QC, who appeared

for the fourth defenders, described the hearing before the Lord Ordinary as a proof before

answer on agreed facts and in his note of argument Mr McBrearty refers to “an agreed

factual matrix, some of which is reflected in the pleadings.”

[31] As appears from para [22] of his opinion, the Lord Ordinary saw his task simply in

terms of construction of the Policy. That would seem to lose sight of the issues of liability

and contributory negligence, but I do not suggest that the Lord Ordinary failed to do what

was required of him. I take the parties either to be agreed that actually there are no issues

between them as to liability and contributory negligence or, in the unlikely event that there

are such issues, that parties have agreed to defer their resolution to a later date,

notwithstanding the terms of the interlocutor allowing proof.

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The factual matrix

[32] Returning to the factual circumstances by reference to which the Policy is to be

construed and applied (Mr McBrearty’s “agreed factual matrix”), I would respectfully

associate myself with the observations of your Lordship in the chair in the postscript to your

opinion. At least by the date fixed for the proof, parties appear to have been in agreement

that it was unnecessary to lead oral evidence or to require the Lord Ordinary to make

findings in fact. That being so, one would expect that any joint minute of admissions

intended as a substitute for the leading of evidence at proof would have taken the form of an

articulate list of concisely stated primary facts and, if agreement between the parties had

gone that far, the appropriate characterisation of these primary facts and any inferences to

be drawn from them. Some of the paragraphs of the joint minute in the present case (1 to 17,

20, and 28 to 30) take that form but others do not. For example, paragraph 18 is as follows:

“18. Production 6/2, document number 10 of process is the post mortem report

following examination [of the deceased] in Aberdeen on 9th August 2013 and can be

treated as evidence without being spoken to”

A similar formulation is adopted in paragraphs 22 to 27 (police interviews and judicial

examinations), 31 and 32 (insurance contracts) and 33 (CDs containing CCTV footage). Now

such a formulation may be appropriate where primary facts are still at issue between the

parties and therefore require to be determined at proof. In such a case where there are

documentary sources of evidence which parties are agreed can be referred to without their

provenance being established by a witness, entering into a joint minute of admissions in

terms such as are adopted in paragraph 18 is good practice and will be encouraged by the

court. But in such circumstances if it is intended to agree more than the provenance of a

document, as it may be, then that should be made clear. In the present case, the purpose of

referring to the report on post mortem examination is obviously to establish that the

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deceased died of asphyxia as a result of the first defender having compressed his neck. That

is indeed described in the report as the “the most compelling pathological interpretation”

but it remains uncertain from the terms of the joint minute as to whether parties have gone

the distance of agreeing that as a fact. That uncertainty is continued in paragraph 19 of the

joint minute which states (it might be said redundantly given the terms of paragraph 18):

“The post mortem [report] noted the cause of death as mechanical asphyxia”. I appreciate

that the joint minute may have been entered into at a time when parties had not yet finalised

their positions as to the scope of the proof, but once parties had agreed to forgo oral

evidence it would have been better if they had revisited the joint minute with a view to

stating in terms what was agreed as primary fact and not leaving that to be guessed at.

[33] As your Lordship in the chair has pointed out, paragraph 34 of the joint minute

(which touches most closely on the facts upon which the fourth defenders found upon as

bringing the exclusion clause in the Policy into play) is also less than satisfactory if, as I can

only assume was the case, its purpose was to obviate the need to lead oral evidence and to

avoid the need for the Lord Ordinary to make findings of primary fact. Paragraph 34 is in

these terms:

“34. That 6/30 [of process] is the sentencing statement in respect of the first

defender given by [the trial judge] on 14th January 2015 and may be referred [to] as

an accurate summary of the evidence heard at the first defender’s trial without being

spoken to by any witness.”

Your Lordship in the chair has quoted the material parts of the trial judge’s sentencing

statement. While not summarising all the evidence heard at trial, it does summarise what I

take to be the salient parts of the evidence relating to how the first defender’s actions came

to be “part of a chain of events that ended with [the deceased’s] tragic and untimely death”,

to borrow the words of the trial judge’s sentencing statement. As your Lordship in the chair

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observes, that the sentencing statement contained an accurate summary of evidence is

strictly speaking irrelevant. What was required was a formulation which made clear what

were agreed as the facts. As it is, read literally, the effect of paragraph 34 is obscure: what

was the Lord Ordinary to make of evidence not accepted by the jury and what weight was

he to give to what was said by the trial judge in her sentencing statement but which went

beyond a summary of the evidence? I have in mind the jury’s apparent rejection of the

Crown case that the direct cause of the deceased’s death was compression of the deceased’s

neck by the first defender, and the trial judge’s acceptance of what does not appear to have

featured in the evidence but which was said by counsel on behalf of the first defender: that

what the first defender did was “badly executed, not badly motivated”?

[34] I acknowledge that what I would see as the deficiencies in the joint minute do not

appear to have given rise to any obvious difficulty at the hearing before the Lord Ordinary.

That was similarly so before the Inner House. However, the fact remains that this court has

been invited to come to a decision on the application of the Policy to what it understands to

be the facts as opposed to a comprehensive list of findings either as made by the Lord

Ordinary or as set out in a joint minute of admissions. That being so, I will identify what I

take the material facts to be:

(1) at the relevant time the first defender was acting in the course of his

employment with the second defenders as a door steward at licensed premises;

(2) the duties of a door steward may include the use of a degree of physical force

towards a member of the public;

(3) such physical force may include restraining a member of the public with a

view to preventing harm either to himself or to others, until the police are able to

intervene;

Page 19 ⇓

(4) here the deceased was such a member of the public;

(5) the first defender had undergone a period of training in the duties of a door

steward which included training in acceptable means of restraint;

(6) the deceased was wrestled to the ground by three door stewards of whom the

first defender was one, and restrained face down pending the arrival of the police

(joint minute paragraph 12);

(7) the three door stewards (the first defender and his two colleagues) all

participated in restraining the deceased on the ground;

(8) the part played by the first defender was to apply a neck or choke hold to the

deceased for up to three minutes (joint minute paragraph 14);

(9) the first defender held the deceased’s head under his right arm with his leg

stretched out;

(10) the first defender’s purpose was to restrain and subdue the deceased in

circumstances where the deceased had offered some (ineffectual) violence to the

door stewards and where the police had been called;

(11) the first defender was aware of and must be taken to have intended his

physical actions, including the application of the neck hold;

(12) the effect of the neck hold was to put pressure on the deceased’s windpipe;

(13) the application of the neck hold by the first defender to the deceased was the

direct cause of the deceased’s death;

(14) the first defender had not been trained to use a neck hold as a means of

restraint;

(15) a neck hold is dangerous in that it impedes and may prevent breathing, the

relevant danger therefore includes the risk of death;

Page 20 ⇓

(16) a trained door steward (and therefore the first defender) would have been

aware of that;

(17) by restraining the deceased in the way that he did (seizing him by the neck,

forcing him to the ground, placing him in a neck or choke hold and restricting his

breathing) the first defender committed the criminal offence of assault (joint minute

paragraph 21 and Law Reform (Miscellaneous Provisions) (Scotland) Act 1968

section 10);

(18) notwithstanding the awareness of risk which can be imputed to the first

defender, there was no direct evidence that he intended to kill or otherwise

significantly harm the deceased, nor are there any agreed primary facts from which

such an actual intention can be inferred;

(19) at least for the purposes of this reclaiming motion, it is to be taken that the

death of the deceased was directly caused by the fault of the first defender for which

the second defenders are vicariously liable to pay damages to the pursuer;

(20) the business description of the second defenders in the schedule to the Policy

is manned guarding & door security contractors.

Construction of the Policy

Structure of the Policy

[35] It is uncontroversial that a third party, such as the pursuer here, can have no higher

or more extensive (or indeed different) rights against the insurer by virtue of the 2010 Act

than the relevant person has against the insurer by virtue of the policy of insurance. If the

insurer has no obligation to indemnify the relevant person under the policy then there are

no rights for the third party to enforce. Similarly if the insurer’s obligation to indemnify the

Page 21 ⇓

relevant person is in some way limited under the policy then the rights which the third

party is entitled to enforce by virtue of the Act are also limited.

[36] For present purposes three provisions of the Policy are relevant: first, an obligation to

indemnify; second, an exclusion from that obligation of “liability arising out of deliberate

acts wilful default or neglect by the insured any director partner or employee of the

insured”; and, third, an extension of the obligation to indemnify in respect of all sums which

the insured becomes liable to pay as “compensatory damages arising from or out of

wrongful arrest”.

[37] The obligation to indemnify appears at the beginning of the Public and Products

Liability Insurance section of the Policy. It is preceded by certain definitions including

definitions of “injury” and “wrongful arrest”. Following the obligation to indemnify are

numbered exclusions, all of which are stated to be “subject to all other terms conditions and

Exclusions of the Policy”. Exclusion number 14 is the exclusion headed “Deliberate Acts”.

Following the exclusions are certain extensions. Extension number 3 is headed “Wrongful

Arrest”.

[38] The Policy contains other sections, general conditions and general exclusions. It has

not been suggested that any of these provisions are of relevance to the issue as to whether

the fourth defenders are liable to indemnify the second defenders in respect of their liability

to the pursuer.

[39] A feature of the drafting of the Policy is that defined terms appear in upper case (I

have not reproduced that when quoting from the Policy). Punctuation is omitted.

The obligation to indemnify arising out of accidental injury

[40] In so far as relevant for present purposes, the obligation to indemnify

Page 22 ⇓

is in the following terms:

“The insurers will indemnify the insured against all sums which the insured shall

become legally liable to pay as compensatory damages …arising out of accidental

(a) injury to any person …”

The definitions section of the Policy includes a definition of “injury” as meaning: “bodily

injury death illness disease or shock causing bodily injury”.

[41] The fourth defenders do not take the point that for the purposes of the obligation to

indemnify the death of the deceased was not “accidental”. That position is consistent with

the decision of the Court of Appeal in Hawley v Luminair Leisure Ltd [2006] PIQR P17.

[42] Procedurally and on its facts Hawley v Luminair has some similarities to the present

case. The claimant had been seriously injured as a result of having been deliberately

punched and knocked to the floor by a nightclub doorman. The claimant’s skull had been

fractured in the fall and he had suffered severe brain damage. The doorman was convicted

of causing grievous bodily harm to the claimant. The doorman was employed by a

company, ASE, which had gone into liquidation with no assets but which had the benefit of

a public liability insurance policy indemnifying it against liability for “accidental bodily

injury to any person”. The claimant sought a declaration pursuant to the Third Parties

(Rights Against Insurers) Act 1930 that the insurers were liable to indemnify ASE in respect

of its vicarious liability for the acts of the doorman and were accordingly liable to pay the

claimant the assessed damages. It was argued that an obligation to indemnify in respect of

liability for accidental bodily injury did not cover the consequences of a deliberate punch

delivered with the intention to inflict bodily injury. At first instance it was decided that the

injury was indeed “accidental” or “fortuitous” within the meaning of the policy. That

decision was upheld on appeal and thus the claimant could recover against the insurer.

Page 23 ⇓

That was because in considering whether the injury caused to the claimant was “accidental”

or “fortuitous” one had to look at the matter from the perspective of the insured, ASE, and

not the doorman. He was to be treated as separate from ASE for the purposes of the policy

and therefore his intention in causing the bodily injury was not to be imputed to ASE.

Extension 3: Wrongful Arrest

[43] It is convenient to look at extension 3 before going to exclusion 14. As has already

been noted, it is the fourth defenders’ position that if their liability to the second defenders is

not excluded entirely by virtue of exclusion 14 then their liability is limited by virtue of

extension 3.

[44] I respectfully agree with your Lordship in the chair that extension 3 has no

application to the circumstances of this case. There is therefore no question of limitation of

liability. That is not to say that there may not be a complete exclusion of liability by virtue of

exclusion 14 but I shall defer consideration of that question until I have given my reasons for

concluding that the obligation to indemnify (and the consequent limitation of that

obligation) provided by extension 3 does not apply to the circumstances of this case.

[45] By virtue of exclusion 20 the insurers will not be liable for any liability arising from

or out of wrongful arrest other than as set out in extension 3.

[46] The Policy states that “wrongful arrest” means:

“any unlawful physical restraint by one person on the liberty of another and includes

1) assault and battery committed ... at the time of making or attempting to make

an arrest or in resisting an overt attempt to escape by a person under arrest before

such person has been or could be placed in the custody of the police ...

2) libel or slander false imprisonment malicious prosecution either

a) committed …directly in connection with an arrest or

b) arising out of the investigation of acts of shoplifting or theft”.

Page 24 ⇓

While “arrest” most immediately suggests the action of a police officer, and therefore by

extension that of someone making a “citizen’s arrest”, in apprehending a suspected criminal,

the expression “wrongful arrest” is habile to describe any interference with the liberty of

another which, if not justified, might render the person who is guilty of such interference

liable in damages. Indeed “wrongful arrest” is one of the terms used by Norrie to describe

the delict giving rise to such liability in the article in the Stair Memorial Encyclopaedia cited

by your Lordship in the chair. The essence of the wrong (and, as I would understand it, its

English equivalent, the tort of false imprisonment – see Clerk & Lindsell on Torts (22nd edit,

2017) para 15-23) is any unlawful constraint on freedom of movement of another person, the

consequent direct loss suffered by the affected person being “lost liberty and the affront

caused”, as Norrie puts it. A wrongful arrest may also carry with it the implicit assertion

that the person arrested is a wrongdoer or at least someone who has been so behaving as to

require restraint, and therefore if carried out in public or if coming to public attention a

wrongful arrest can give rise to a claim for damages in respect of injury to reputation. Thus,

although a wrongful arrest may involve a degree of physical force, liability does not depend

on the infliction of personal injury or even bodily contact. That, in my opinion, points to the

purpose of extension 3: it is dealing with a specific type of legal liability and therefore a

specific risk which is distinct from the risk of liability arising out of accidental injury to any

person. Were it not for the extension, as is made clear by exclusion 20, the Policy would not

provide indemnity against the insured being found liable in damages for deprivation of

liberty, which one might suppose to be a far from remote possibility in the present case

given the nature of the business of manned guarding and door security.

[47] The indemnity provided by extension 3 is in respect of all sums which the insured

becomes liable to pay as compensatory damages “arising from or out of wrongful arrest”. It

Page 25 ⇓

is true that the definitions section of the Policy, which sets out what wrongful arrest

“means”, states that it includes “assault and battery” but, as with “libel and slander”, in this

context I construe these references as being to subsidiary or incidental wrongs which may be

committed in the course of what falls principally to be regarded as the wrong of unjustified

restraint on the liberty of another. It would seem that in Hawley v Luminair the Court of

Appeal took much the same view of the purpose and drafting of an extension in different

but similar terms to that with which we are concerned here. The policy of insurance in that

case had an extension providing indemnity against liability “in respect of any unlawful

physical restraint …and shall include …assault and battery committed … at the time of

making or attempting to make an arrest”. Giving the judgment of the Court of Appeal

Hallett LJ had this to say about the extension at paras 112 and 113 (emphasis added):

“We consider it perfectly possible that, when extending the public liability cover …to

wrongful arrest by extension (c), it was thought prudent to make it clear that the

bodily injury cover …was also extended. In any event, the concept of ‘assault and

battery’ is by no means identical to ‘accidental bodily injury’. …as appears pretty

clear from extension (c), the policy was intended to cover [the insured] for assault

and battery committed …in the context of an unlawful physical restraint ...”.

Exclusion 14: Deliberate Acts

[48] The exclusions section of the Policy begins:

“These Exclusions apply in addition to other Exclusions in this Section and the

General Exclusions.”

It continues:

“The insurers will not be liable for”

There follow various numbered risks, of which number 14 is as follows:

“14. Deliberate Acts

liability arising out of deliberate acts wilful default or neglect by the insured any

director partner or employee of the insured”

Page 26 ⇓

Thus, the Policy seeks to exclude liability arising out of, on the one hand, “deliberate acts”

and, on the other, “wilful default or neglect”; acts on one hand, omissions to act (in breach of

duty) on the other.

[49] According to the fourth defenders’ note of argument, the phrase “wilful default or

neglect” constitutes well-trodden ground in insurance contracts. That may well be correct,

although none of the three cases to which we were referred in order to explain the meaning

of the phrase (In re City Equitable Fire Insurance Company Ltd [1925] Ch 407, Kenyon Son &

Craven v Baxter Hoare & Co [1971] 1 Lloyd’s Rep 232 and Swiss Bank v Brink’s-MAT Ltd

[1986] 2 Lloyds Rep 79)’ relates to an insurance contract. However, as I understood Mr

McBrearty’s argument, “wilful default or neglect” is no more than part of the documentary

context to which regard may be had in construing the more critical phrase: “deliberate acts

... by ... [an] employee of the insured”. It was because it arose out of deliberate acts of the

first defender that, according to Mr McBrearty, any purported liability to indemnify is

excluded by exclusion 14. It is put this way in the fourth defenders’ note of argument:

“[That] the jury at his trial found the first defender not guilty of murder ...is not to

say that his actions were not deliberate. They were certainly blameworthy. He did

not accidentally place [the deceased] in a choke hold. It was a deliberate action, and

one which ‘ignored’ his training. It was highly dangerous. At the very least it was

grossly careless or reckless. There is no challenge to the conviction for assault or the

terms of the trial judge’s summary. Assault is an offence which requires intention or

(in England) recklessness. It follows that any liability arising from this action is

excluded by the Policy.”

Mr McBrearty supported his submission by reference to Hawley. There, the obligation was

to indemnify the assured “against legal liability for damages … arising from accidental

bodily injury to any person”. That is not very different from the obligation to indemnify in

the present case. However, in Hawley there was no equivalent to exclusion 14. The

argument centred on whether the injury to the claimant was “accidental” (defined in the

Page 27 ⇓

policy as “sudden, unforeseen, fortuitous and identifiable”) when it was caused by a

deliberate punch. The Court of Appeal considered that the infliction of injury could not be

described as “accidental” or “fortuitous” from the point of view of the doorman (Hawley

para 104) but for the purpose of construing the policy, the relevant perspective was that of

the assured employer and not the employee who delivered the punch. It was likely,

suggested Mr McBrearty, that exclusion 14 had been included in the Policy here with an eye

to the outcome in Hawley in order to make clear that deliberate infliction of loss was not

covered by the Policy, irrespective of whether the deliberate act in question was that of the

insured, any director or partner of the insured, or of any employee of the insured. The

different perspectives as to what is accidental as between employer and employee which

were available given the terms of the policy in Hawley, are not available in the present case

because here the Policy specifically addressed the perspective of an employee and provided

that if liability arose out of his deliberate act then indemnity was excluded.

[50] Whether liability for the death of the deceased is an excluded risk under the Policy

depends first on determining the proper construction of exclusion 14 and then on an

application of that construction to the facts of the case as they can be taken to be. As

Mr McBrearty acknowledged, the step of construction is not just a question of attributing

their ordinary meaning to the words found in the Policy (important as that is). Words must

be construed according to their context with a view to ascertaining the objective intention of

the parties and the commercial sense of the document. That can be seen from the three

principles set out in the passage in Yorkshire Water Services Limited v Sun Alliance & London

Insurance plc [1997] CLC 213 which have been quoted by your Lordship in the chair and

which are accepted and discussed in Hawley at paras 100 to 102. It also appears from the

opinion of Lord Neuberger, speaking for a majority of the Supreme Court in Arnold v Britton

Page 28 ⇓

[2015] AC 1619 at paras 15 to 20, a passage to which Mr McBrearty referred. At para 15 of

Arnold Lord Neuberger said this:

“When interpreting a written contract, the court is concerned to identify the intention

of the parties by reference to ‘what a reasonable person having all the background

knowledge which would have been available to the parties would have understood

them to be using the language in the contract to mean’, to quote Lord Hoffmann in

Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, para 14. And it does so by

focussing on the meaning of the relevant words … in their documentary, factual and

commercial context. That meaning has to be assessed in the light of (i) the natural

and ordinary meaning of the clause, (ii) any other relevant provisions of the

[contract], (iii) the overall purpose of the [particular] clause and the [contract], (iv)

the facts and circumstances known or assumed by the parties at the time that the

document was executed, and (v) commercial common sense, but (vi) disregarding

subjective evidence of any party's intentions.”

Factual and commercial context and commercial common sense are of importance here. As I

took Mr McBrearty to recognise, an overly literal construction of “liability arising out of

deliberate acts... by the insured [or] any director …[or] employee of the insured” 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. Parties must be

taken as having intended that the Policy should provide some material degree of cover in

respect of liability for personal injury to third parties; that being what it purported to do. As

your Lordship in the chair has indicated, that is the point made by Tuckey LJ in CP (a child)

v Royal Mutual Insurance [2006] 1 CLC 576 at para 15 and the reason why, in that case, he

gave a more restricted meaning to “wilful” (in the phrase “wilful, malicious or criminal”)

than simply “deliberate”.

[51] In order to identify the intention of parties in the present case it is relevant to

consider the nature of the second defenders’ business and the sort of risks against which a

Page 29 ⇓

company engaged in that business might be expected to require indemnity. That is part of

the commercial context. The second defenders were engaged in the business of “manned

guarding and door security contractors”. That is a business which involves the deployment

of physical force in circumstances which are likely to be close to the cusp between lawful

and unlawful behaviour. As it is put in paragraph 6 of the fourth defenders’ note of

argument, “Regrettably, door stewards occasionally assault customers or restrain them

unlawfully”. A reasonable person having all the background knowledge which would have

been available to the parties would know that and, accordingly, although there might be a

question of degree, would expect a public liability policy to cover the risk of liability arising

from such events.

[52] Of course exclusion 14 must have some purpose and that purpose must be to restrict

the extent of cover to some extent, irrespective of the expectations of the reasonable person.

But, as Mr McBrearty conceded, its purpose cannot be to exclude liability arising out of all

“deliberate acts” and certainly not all deliberate actions, which is how Mr McBrearty

interpreted “acts”. That result would be contrary to commercial common sense, if not

simply absurd. Mr McBrearty sought to pull back from an absurd conclusion by suggesting

a construction which inserts the requirement that the relevant act should not only be

deliberate (in the sense of intentional) but also unlawful or at least blameworthy. I see no

reason to adopt Mr McBrearty’s suggestion. As a matter of language, there is nothing in

“deliberate” (or its near equivalent “wilful”) to suggest “unlawful” (see CP (a child) at

paras 11 and 12 discussing Young and Harston’s Contract (1885) 31 ChD 168 at 174 to 175). In

CP (a child) it was because Tuckey LJ thought that the words “malicious or criminal” lent

colour to “wilful” in a clause excluding liability for “any wilful, malicious or criminal acts”

that “in this context”, as he put it, a “wilful” act must be blameworthy and therefore, in his

Page 30 ⇓

view, at least reckless. Assuming Tuckey LJ to be correct in his construction of the particular

policy before him, it does not follow that “wilful” will always imply blameworthiness or

necessarily comprehend recklessness wherever it is found, irrespective of context; taking the

meaning of a word used in one context and applying that meaning in another context is just

the approach that the Court of Appeal warns against in Hawley at para 105.

[53] Your Lordship in the chair proposes, as the proper construction of “deliberate acts”

where it appears in exclusion 14, 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. I respectfully agree. It appears to me that that

construction gives full weight to the ordinary meaning of the various words in the

expression “liability arising out of deliberate acts”. It avoids absurdity without the need to

read in words which do not appear in the text. It is commercially sensible in that it provides

cover against risks incidental to the insured’s business while being consistent with “a basic

rule of insurance law”, namely, “that a contract of insurance does not cover an assured

against his deliberate or wilful infliction of loss, at any rate in the absence of express

stipulate or necessary implication”: Charlton v Fisher [2002] QB 578 at para [51] (quoted in

Hawley at para 106).

Conclusion

[54] In my opinion, respectfully agreeing with your Lordship in the chair, the liability of

the second defenders to the pursuer is a liability in respect of which the second defenders

are entitled to indemnity from the fourth defenders under the Policy. Liability is not limited

Page 31 ⇓

by virtue of extension 3 because that extension has no application to the facts of the case.

Neither is it excluded by exclusion 14. On the facts as they appear to be, the first defender

clearly intended to restrain the deceased. In order to do so he clearly intended to apply a

neck hold, because that is what he did. That may have been a dangerous action and, as a

matter of law, may have involved the use of a degree of force which was unjustifiable in the

circumstances and therefore constituted an assault, but it cannot be said that the first

defender intended significantly to harm the deceased and it cannot be said that the first

defender intended to kill the deceased. What is excluded by exclusion 14 is “liability arising

out of deliberate acts”. The liability in question here is liability for causing the death of the

deceased. The relevant act therefore is causing death. On the facts as agreed the first

defender caused the death of the deceased but he did not do so deliberately; his causing of

the death was not a deliberate act. Your Lordship in the chair reserves his position on

whether exclusion 14 would exclude liability in respect of an act which, on objective

assessment, was found to be reckless. As your Lordship has indicated, this does not arise

for decision in this case in the absence of any finding of recklessness, but I acknowledge that

there might be a case where the circumstances were such that the relevant act might be

regarded as “deliberate” notwithstanding the absence of subjective intention to do the harm

in respect of which liability has arisen.

[55] I agree that the reclaiming motion should be refused.

Page 32 ⇓

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Brodie

Lord Drummond Young

[2019] CSIH 9

PD4/16

OPINION OF LORD DRUMMOND YOUNG

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

[56] The fundamental issue in this case is the application to the facts of the insurance

policy concluded between the second defenders, the employers of the door steward whose

actings brought about the death of the pursuer’s husband, and the fourth defenders, the

insurers under that policy. The policy provides for indemnification of the insured (the

second defenders) against “all sums which the INSURED shall become legally liable to pay

as compensatory damages … arising out of accidental injury to any person” in connection

with the insured’s business. That indemnity is, however, subject to a number of exclusions,

Page 33 ⇓

two of which are relevant to the present case. The first of these is exclusion 14, which relates

to deliberate acts. That exclusion applies to “liability arising out of deliberate acts wilful

default or neglect by the INSURED any DIRECTOR PARTNER or EMPLOYEE of the

INSURED”, subject to extensions that are not relevant to the present case. The second

relevant exclusion is exclusion 20, dealing with wrongful arrest, read together with

extension 3 of the policy. Exclusion 20 excludes any liability arising from wrongful arrest

other than as set out in extension 3. Extension 3 provides indemnification for wrongful

arrest carried out by any employee of the insured, but the schedule to the policy limits

liability in respect of wrongful arrest to £100,000.

[57] The critical questions are first, whether exclusion 14 excludes the liability of the

insurer for the death of the deceased, and secondly, whether the door steward’s actions

against the deceased amounted to wrongful arrest, thus limiting the insurers’ liability to

£100,000. I agree with your Lordships that exclusion 14 does not operate to exclude liability

for the death of the deceased. I further agree that the door steward’s actions did not amount

to wrongful arrest, with the result that the insurers’ liability is not limited.

The construction of insurance policies

[58] The general principles that apply to the construction of insurance are similar to those

that apply to the construction of contracts generally, and are conveniently summarized in

Yorkshire Water Services v Sun Alliance & London Insurance PLC, [1997] CLC 213, at 221, per

Stuart-Smith LJ. The words used in the policy must be given their ordinary meaning. They

must, however, be construed in context. Two different contexts can be said to be relevant.

First, the words used in a particular clause must be set in the context of the policy as a

whole. Secondly, the words used, and indeed the policy itself, must be set in the wider

Page 34 ⇓

context of the insured’s commercial or other activities. Insurance is provided against

liabilities that may arise in the course of those activities, and the policy should be construed

in such a way that it provides a reasonable level of effective cover against such liabilities.

[59] Moreover, a purposive approach to interpretation should be followed; the

construction given to the contractual wording should reflect the intention of the parties and

the commercial sense of the agreement. As in any other form of commercial contract,

commercial common sense is an important factor in construction of the contractual wording.

An example of this principle is found in cases where literal construction of the contractual

wording leads to an absurd result or one that is otherwise manifestly contrary to the

intention of the parties. In such cases, as indicated in Yorkshire Water, if an alternative more

reasonable construction is available without doing undue violence to the language used,

that construction should be adopted. Finally, in cases of ambiguity, the contra proferentem

rule applies, and the construction more favourable to the insured should be adopted.

[60] The importance of context was emphasized in the later decision of the Court of

Appeal in Hawley v Luminar Leisure Ltd, [2006] PIQR P17, at paragraphs [100]-[102]. It had

been argued that the words “accidental” and “fortuitous” should be given their ordinary

meaning, but this contention was rejected. Hallett LJ stated:

“However, virtually every word in the English Language is capable of having more

than one meaning, and most can have many different shades of meaning. The

precise meaning to be ascribed to a word or phrase in a particular contract must

therefore ultimately be decided by reference to its linguistic and here its commercial

context.

The three principles identified [in Yorkshire Water] also serve to underline the caution

which a court, seeking to identify the meaning of a word in a particular contract,

must adopt when considering what assistance can be derived from either the word’s

acontextual meaning, or judicial decisions as to the meaning of the same word in a

different contract. Because the contractual and commercial circumstances of each

case are inevitably different, it can be positively dangerous to draw assistance from

the acontextual meaning or from decisions of other courts as to the meaning of a

Page 35 ⇓

particular word, when context is so important on issues of interpretation. Of course,

very different considerations may apply where a particular word or phrase has a

specific well-established meaning in a certain type of contract”.

The last comment applies to words that have in effect acquired the status of a term of art.

Otherwise, however, the two contexts referred to above, the particular context of the parties’

contract and the wider commercial context in which that contract has been concluded, are of

fundamental importance to any contractual analysis. For this to be so it is not essential that

any specific ambiguity should be identified; the important point made in Hawley is that the

meaning of any word or expression is unclear in the absence of context.

The application of exclusion 14 of the present policy

[61] Exclusion 14 applies to “liability arising out of deliberate acts wilful default or

neglect”. In legal usage, the word “deliberate” normally means intentional; a deliberate act

is something that the actor intended to do. The notion of a deliberate act, however, is in one

respect ambiguous. This can be illustrated by the example of a road accident caused by a

driver’s carelessness. The driver responsible for the accident obviously intended to drive his

car. Thus the driving that led to the accident can be described as a “deliberate act”, and that

deliberate act was a cause of the accident, at least in the sense of a causa sine qua non.

Nevertheless, it would be contrary to common sense to describe the accident as arising out

of the driver’s “deliberate act”. The accident arose from his carelessness, and it is manifest

that any exclusion of liability in his insurance policy for “any deliberate act” would be

inapplicable. The reason for this conclusion is that, in an insurance policy at least, any

reference to a “deliberate act” must normally be construed as a reference to a deliberate act

of the insured, or the insured’s employee, that is a proximate or immediate cause of the loss

claimed or the liability on which a contractual claim is based. A proximate or immediate

Page 36 ⇓

cause must be distinguished from a causa sine qua non, that is to say, a causative event that is

a necessary condition of the loss or liability but does not bear a close causal relationship to it.

Generally speaking, it is only a deliberate act that amounts to a proximate or immediate

cause of the loss or liability that will be the subject of an exclusion clause.

[62] An analogous ambiguity occurs in the present policy. Exclusion 14 refers to

deliberate acts of the insured’s employees. The wording used must be construed in context,

however. An important part of that context is the fact that the policy was effected by a

security company which employed door stewards such as the first defender; the schedule to

the policy refers expressly to the insured’s business as that of “Manned Guarding & Door

Security Contractors”. Door stewards are employed to deal with troublesome customers or

would-be customers. It is obvious that in the course of his employment a door steward may

require to engage in acts involving physical restraint and some degree of force in order to

deal with the more troublesome customers. Even the use of reasonable force may result in

injury, however, and in some cases injury may result from negligence on the part of the

steward, or from the use of force that goes beyond what is necessary or reasonable. It is in

cases of this sort that claims are likely to be made against the second defenders as the

employers of the door steward, on the basis that they are vicariously liable for the steward’s

failure to exercise reasonable care in carrying out his duties. As a matter of common sense,

it is plain that this is precisely the sort of case where the indemnity provided by the policy is

likely to be relevant. If there is no negligence, and only reasonable and necessary force is

used, it is unlikely that there would be any ground of action against the insured. In any

such case, however, the actings of the door steward can be described as “deliberate” in the

sense that the steward intends to restrain or otherwise deal with a troublesome customer.

That is analogous to the intention to drive in the case of the road accident; it is a necessary

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condition of the resulting injury, but it is not a sufficient condition for liability. What gives

rise to liability is the existence of negligence, as with the road accident, but the negligence is

not an intentional or deliberate act but merely careless. As with the road accident, the

intention to restrain a troublesome customer cannot be regarded as a proximate or

immediate cause of the loss; it is the fact that the restraint was carried out in a negligent

manner that is the proximate or immediate cause.

[63] In some cases, of course, the inference may be drawn that a door steward intended to

cause an injury of the type suffered by a customer. In my opinion the application of

exclusion 14 should be confined to cases of that nature, where there is a deliberate decision

to use excessive force to cause injury. Exclusion 14 is not intended to deal with the case

where a door steward attempts to restrain a customer or would-be customer but in doing so

negligently, or even recklessly, goes beyond a reasonable level of force. The use of the word

“deliberate” in the exclusion indicates that the employee’s act should be intended to cause

the type of harm suffered by the victim. Even if that harm results from a deliberate act of

the employee, such as punch or choke hold, unless the harm suffered was of the general

nature intended by the employee, it cannot be said that the liability for that harm arose out

of the “deliberate” act of the employee.

[64] It is essential in my opinion to construe exclusion 14 in this way in order to give

effect to the fundamental purpose of the insurance policy in the context in which the policy

operates. The primary purpose of the policy is self-evidently to provide the insured, the

employer of door stewards and other staff, with an indemnity against liabilities that may be

incurred to customers or would-be customers as a result of the actings of the staff employed

by them. As already noted, the duties of door stewards will inevitably involve the use of

some force. Consequently the intention to use force against a customer cannot be a bar to

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liability; otherwise the policy would be deprived of a major part of its obvious commercial

purpose.

[65] Exclusion 14 applies not merely to deliberate acts but also to “wilful default or

neglect” by among others any employee of the insured. The word “wilful” points to the

active exercise of the will; in other words it indicates intentionality. On that basis, the

expressions “wilful default” and “wilful neglect” must signify a deliberate or intentional

failure to act. It is difficult to make sense of the provision in any other way. Indeed, if the

word “neglect” is not qualified in this manner, the policy would not cover many, and

possibly most, cases of mere negligence on the part of a door steward. That would be

commercially absurd; as I have already indicated, in cases where necessary or reasonable

force is used against a customer there can be no liability that would be indemnified by the

policy, and the policy would have no practical effect. Thus the policy, construed in context,

must be intended to cover cases where there is some level of blame on the part of the door

steward. Consequently wilful default and wilful neglect must signify something more

precise than mere blame or fault. That additional content is provided in my opinion by the

word “wilful”, which indicates an intentional failure to act.

[66] The word “wilful” was construed in CP v Royal London Mutual Insurance, [2006] 1

CLC 576, a case where a fire in a partly derelict mill was caused by the actings of a child

who built a den within the mill and then set fire to paper within his den. The facts of the

case are obviously significantly different from those of the present case, and thus for the

reasons given by Hallett LJ in Hawley v Luminar Leisure Ltd, supra, at paragraph [102], it

cannot be regarded as a helpful precedent. In CP, however, Tuckey LJ, who delivered the

main opinion, stated at paragraph [16] that for an act to be “wilful” it was not necessary that

the act should be deliberate and intended to cause damage of the kind in question. It would

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be enough to show that the insured was “reckless as to the consequences of his act”.

Recklessness for this purpose meant that the insured should be aware that what he was

about to do risked damage of the kind that gave rise to the claim, or did not care whether

there was such a risk or not. In agreement with the Lord Ordinary, I do not think that the

word “wilful” can be given such an extended meaning except perhaps in a very specific

context. In general, “wilful” signifies that an act is deliberate or intentional, or is

deliberately or intentionally intended to bring about a certain consequence. Recklessness is

a different concept: it involves awareness of risk of consequences but not caring about

whether that risk eventuates. 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.

[67] The critical question is accordingly whether on the facts of the case the first

defender’s assault on the deceased disclosed an intention to cause serious injury to the

deceased. It is a matter of agreement that the sentencing statement provided by the judge

who presided over the trial of the first defender represents an accurate statement of what

occurred. The first defender was charged with murder but was acquitted of that offence and

was found guilty of assaulting the deceased, by seizing him on the neck, forcing to the

ground, placing him in a neck or choke hold compressing his neck and restricting his

breathing. In her sentencing statement, the trial judge described the evidence recorded by

CCTV. She further noted that in the training undergone by licensed door stewards a neck

hold was not regarded as an acceptable method of restraint, and stated that the first

defender appeared to have ignored his training. There had been a conflict of medical

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evidence as to the causes of the deceased’s death, and the trial judge observed that the jury

appeared to have resolved that conflict in the first defender’s favour. The result of the

verdict of the jury was that the first defender was not responsible for the death of the

deceased. The trial judge accepted the submission made in mitigation that what the first

defendant did “was badly executed, not badly motivated”. On that basis she imposed a

non-custodial sentence.

[68] In the light of the trial judge’s description of what happened and the verdict of the

jury, 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. That means that the exclusion for liability

arising out of “deliberate acts” does not apply. The fact that the first defender deliberately

restrained the deceased is irrelevant for this purpose, because that is not the proximate or

immediate cause of the deceased’s death. A similar analysis applies to the exclusion for

wilful default or neglect. While the first defender’s actings might readily be described as

involving default or neglect for the safety of the deceased, it cannot in my opinion be said

that such default or neglect was “deliberate”, in the sense that there was a wilful or

intentional failure to act that brought about the death of the deceased. In short, the agreed

facts disclose a serious degree of carelessness, and possibly recklessness, on the part of the

first defender, but it cannot be said that the first defender brought about the death of the

deceased through a deliberate act or wilful neglect or default that went beyond the intention

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to restrain a troublesome customer. For these reasons I consider that exclusion 14 does not

apply.

Exclusion 20 and “wrongful arrest”

[69] Exclusion 20, taken together with extension 3, has the effect of limiting the liability of

the fourth defenders as insurer to £100,000 in respect of all sums which the insured, the

second defenders, should become legally liable to pay as compensatory damages arising

from or out of wrongful arrest committed or alleged to have been committed by among

others any employee of the insured. As with exclusion 14, the words of the policy must be

construed in a purposive manner having regard to the context, and in particular to the fact

that the policy was intended to provide an indemnity for the actings of door stewards

employed by the insured. Furthermore, in my opinion the principle that exclusions in an

insurance policy should be construed contra proferentem is relevant; that points to a relatively

restricted meaning for the expression “wrongful arrest”.

[70] In legal usage the word “arrest”, in relation to persons, normally signifies

apprehension by legal authority. The expression “wrongful arrest” signifies an attempt to

apprehend a person without reasonable justification or displaying malice or using excessive

force. In the policy, “wrongful arrest” is defined as meaning “any unlawful physical

restraint by one person on the liberty of another”. The definition is extended to include

assault and battery committed or alleged to have been committed at the time of making or

attempting to make an arrest or in resisting an attempt to escape before such person could

be placed in the custody of the police. Two features of the definition appear to me to be

important. First, the first part of the definition indicates that what is covered is unjustified

physical restraint, rather than acts of excessive violence. Secondly, the extension indicates

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that the arrest is contemplated as ending with the handing over of the victim to the custody

of the police. That strengthens the view that what is covered is restraint rather than

violence. On that basis, what is covered by this provision is an attempt to apprehend a

person, as in a typical arrest, but without the authority that renders the arrest lawful.

[71] In the present case, I am of opinion that the acts of the first defender, as described in

the sentencing statement of the judge who presided over his trial, cannot be described as

attempted apprehension; nor can they be described as acts of restraint rather than acts of

physical violence. Nor does there appear to have been any attempt to restrain the deceased

until he could be handed over to police custody. The claim made by the pursuer is rather

based on the use of excessive force, not any attempt to arrest the deceased.

[72] It was contended on behalf of the insurers that the claim made against them was a

claim under the policy and hence was a claim of the insured, the second defenders.

Consequently the claim was limited by the second defenders’ rights under the policy, not by

the claim that the pursuer made against the second defenders. Nevertheless, what is

indemnified under the policy is “all sums which the INSURED shall become legally liable to

pay as compensatory damages” arising out of injury to any person. This means that before

there is any liability on the part of the insurer a third party, in this case the pursuer, the

deceased’s widow, must have a valid legal claim against the insured; otherwise there is no

legal liability to make payment, and hence the essential condition of the indemnity is not

satisfied. For this reason it is necessary to consider the nature of the pursuer’s claim, and in

my opinion the Lord Ordinary was quite correct in doing so. So far as exclusion 20 is

concerned, the pursuer’s claim is not based on wrongful arrest; it is a claim for

compensation for the death of the deceased based on the fault and negligence of the first

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defender as an employee of the insured party. This in my opinion provides a further reason

for holding that exclusion 20 is not applicable to the facts of the present case.

Conclusion

[73] For the foregoing reasons I agree with your Lordships that the reclaiming motion

should be refused.