What is a deliberate act? And, in the context of a public liability insurance policy, can a reckless act be viewed as deliberate? The Supreme Court considered those issues in a landmark case concerning a man who died after being placed in a neck hold by a bar doorman.
The cause of the man's death was mechanical asphyxia, caused by the application of the hold following his ejection from the bar. The doorman was tried on a murder charge but was convicted only of assault after the jury did not accept that he had asphyxiated the man or caused his death. He was given a non-custodial sentence after the trial judge found that his actions, whilst badly executed, were not badly motivated.
The man's widow sought compensation from an insurer with whom the doorman's employer held a public liability policy. The insurer argued that her claim should be dismissed on the basis that a clause in the policy excluded liability in respect of employees' deliberate acts. The widow's claim, however, succeeded before the courts in Scotland.
Dismissing the insurer's appeal against that outcome, the Supreme Court found that the exclusion did not extend to reckless acts. The most natural interpretation of the word 'deliberate', as used in the policy, required the conscious performance of an act, intending its consequences. For the exclusion to apply, it was not the act which gave rise to the injury that had to be deliberate, but the act of causing the injury itself.
That interpretation accorded with what a reasonable person would take the word to mean and with the commercial context. Given the clear risk that door staff may use a degree of force in carrying out their duties, extending the exclusion to reckless acts would seriously circumscribe the cover provided by the policy, stripping it of much of its content. Such an exclusion would be very wide and commercially unlikely.
The insurer's case in any event failed on the evidence in that there had been no finding that the doorman intended to injure the man, or even that he had been reckless. The trial judge's sentencing remarks were inconsistent with any such conclusion.