The UK Supreme Court in Grant v International Insurance Company of Hanover Limited[1] considered an insurance policy that included an exclusion for “liability arising out of deliberate acts, wilful default or neglect” of an employee. This case is significant as the Supreme Court clarifies the meaning of the term “deliberate” and demonstrates the distinction between conduct that is deliberate and that which is reckless.
The facts
Grant died on August 9, 2013, following an assault by a door steward at a bar in Aberdeen. Grant had been forcibly removed from the bar, following which the door steward, who was employed by Prospect Security Limited (the policyholder) applied a neck hold to him. Mr. Grant was pronounced dead at the scene, with the cause of death declared as medical asphyxiation caused by the neck hold. The door steward stood trial for murder at the high court in Aberdeen, but was convicted only of assault. At sentencing, the judge stated that the door steward’s actions were “badly executed, not badly motivated” and imposed a non-custodial sentence.
The action was brought by Grant’s widow. The insurers argued that their liability is excluded under the terms of the policy, which excludes liability for “deliberate acts, wilful neglect or default.” The insurers argued that the term “deliberate acts” should include (1) acts which were intended to cause injury, and (2) those which were carried out recklessly as to whether they would cause injury. Ms. Grant, on the other hand, argued that the term “deliberate” included only acts that were intended to cause the outcome that in fact resulted, and did not include reckless acts. Ms. Grant argued that to include reckless acts under the exclusion would strip the policy of any meaningful and effective content.
The Supreme Court began its analysis by providing a definition of the term “deliberate,” which it held as “involving a different state of mind to recklessness.” The Court further held that “the relevant act in this case is that of causing injury, so its natural meaning in the present context is carrying out an act intending to cause injury.” In its analysis, the Court noted that to accept the insurers’ position would reduce the meaningful and effective content of the policy, given the commercial context of the policy in question as having “clear risk that door stewards will use a degree of force in carrying out their duties and that vicarious liability for their tortious acts may result.”
Comparison with Canadian Law
The Canadian authority on this issue is Sirois v. Saindon.[2] In Saindon, the insured lifted a lawnmower over his shoulders and directed it towards his neighbour in order to threaten but not physically harm him. The neighbour raised his hands in defence, and the fingers on one of his hands were severed. The insurance policy in question contained an exclusion for damage caused “intentionally by or at the direction of the insured.” The Supreme Court of Canada found that the (intentional) act of thrusting the lawnmower was the “proximate cause” of the injury, and that the exclusion therefore applied. This ruling appears to leave open the possibility of using reckless acts to prove intentional act exclusions. The ruling of Saindon was clarified by the same court in Sansalone v Wawanesa Mutual Insurance Co.[3] In Sansalone, the Court clarified the Saindon ratio as being “when the risk of injury is inherent in the insured’s deliberate act so that the injury is the natural and probable consequence of the act, the intention to commit the act is the intention to cause the injury.” In following this principle, the Court demonstrates that an insurer relying on a similar exclusionary clause must demonstrate that the insured intentionally committed the act causing the injury, and that they intentionally caused the resulting injury, unless the injury is “the “natural and probable” consequence of the act.
Conclusion
Grant rejects the notion that a reckless act could be excluded under a “deliberate act” insurance policy exclusionary clause. The Court also considered the public policy interest of preserving the content of insurance policies, particularly in a commercial context involving a certain degree of risk. This holding goes further than the Canadian authorities by slamming the door on recklessness as a ground for deliberate exclusion. In Canada, the door steward’s door is still open. Underwriters must insist that training is undertaken by insureds’ door stewards with regard to the acceptable force to use in the removal or containing of patrons, in order to mitigate potential findings of liability.
[1] Grant v. International Insurance Company of Hanover Limited, [2021] U.K.S.C. 12 [Grant].
[2] Sirois v. Saindon, [1976] 1 S.C.R. 735 [Saindon].
[3] Sansalone v. Wawanesa Mutual Insurance Co, 2000 S.C.C. 25 [Sansalone].
