The Supreme Court, by decisions given on 23 April 2021, unanimously dismissed the appeal of International Insurance Company of Hanover Ltd, the insurers, relating to the ability of the insurer to rely on the exclusion under the policy of ‘liability arising out of deliberate acts’. Charlotte Stewart-Jones, solicitor at Reed Smith, comment on the Supreme Court’s judgement.

Craig Grant was killed on 9 August 2013 as a result of an assault by Jonas Marcius, a door steward employed by Prospect Security Ltd (Prospect) to work at the Tonik Bar in Aberdeen. Grant was pronounced dead at the scene following an altercation in which Marcius applied a neck hold on Grant. The cause of death was determined to be mechanical asphyxia, caused by the neck hold. In its judgement the High Court in Aberdeen accepted that Marcius actions were badly executed, but not badly motivated and imposed a custodial sentence. The jury, during the trial, found that asphyxiation and the death of Grant was not caused by Marcius and only convicted him of assault.

Prospect was insured by International Insurance Company of Hanover Ltd (the Insurer), under a policy which covers public liability. The policy encompassed an exclusion which provided that ‘liability arising out deliberate acts’ of an employee was excluded from the policy’s coverage.

As her capacity as a widow, Mrs Grant brought a claim for damages in March 2016 against Marcius, Prospect and the Insurer. The claim was discontinued against all defendants except for the Insurer. In her claim, Mrs Gant holds that the Insurer would be liable to indemnify Prospect, in respect of vicarious liability for the wrongful acts of their employee, Marcius, and that the right to be indemnified was transferred to and vested under the Third Party (Rights and Insurers) Act 2010. The Insurers were unsuccessful in seeking to have the claim dismissed on the basis that it was not liable to indemnify Prospect under the policy, as Marcius’ actions fell within the clause 14 exclusion of ‘deliberate acts’. It was argued that any liability to indemnify arose under Extension Three of the policy, which provided coverage for public liability for wrongful arrest limited to £100,000. Mrs Grant was successful in her claim before the Lord Ordinary and the Insurer’s appeal was dismissed by the Court of Session.

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This analysis was first published on Lexis®PSL on 23 April 2021 and can be found at LexisNexis.com.