Burnett v International Insurance Company of Hanover Ltd (Scotland) [2021] UKSC 12 (23 April 2021)
Citation:Burnett v International Insurance Company of Hanover Ltd (Scotland) [2021] UKSC 12 (23 April 2021).
Subjects invoked: 69. 'Insurance'.35. 'Loss of society'.31. 'Supervisor negligence'.
Rule of thumb:If a bouncer / security injures a patron, does occupier's liability insurance cover a personal injry action? Yes, it does. The Court affirmed that if a security company has a public liability insurance policy, and one of their bouncers is over aggressive in dealing with a patron recklessly using mixed martial arts (mma) tactics rather than strictly following protocol bouncer protocol, and injures the patron, then a typical public liability insurance policy covers the damages the patron suffers for this type of incident.
Background facts:
This case concerned the subjects of supervisor negligence, loss of society and insurance.
The facts of this case were that Mrs Grant-Burnett (her maiden name was Burnett and this is the name in the action) was out with her husband, Mr Grant, in a pub in Aberdeen. Mr Grant got into a row with the bouncer of the pub, Tonik. The bouncer in the pub put Mr Grant into a choke-hold/rear naked choke, a jiu-jitsu hold which is used in mixed martial art competition (mma) with a referee, but is not allowed to be used by bouncers. The bouncer left Mr Grant in this choke-hold for longer than he should have, and Mr Grant then tragically suffocated and died. There was a criminal action in this matter against the bouncer. The bouncer explained how this was a tragic accident which he was deeply sorry about, and the jury found his apology and explanation to be genuine. The bouncer was convicted for assault and was not convicted for murder or culpable homicide.
Mrs Burnett-Grant sent a loss of society claim-letter for the death of her husband against the bouncer’s security company, as well as for the injuries her husband suffered prior to his death. The security company that the bouncer worked for however went into liquidation as Mrs Burnett-Grant was suing them. The security company informed Mrs Burnett-Grant that they had public liability insurance with Hanover Insurance however, and they provided a copy of this policy. Mrs Burnett-Grant sent a claim letter to Hanover insurance citing this public liability insurance policy. Hanover insurance however stated that they were not paying the damages because there was an intention clause in this insurance policy contract stating that they were not liable for ‘intentional acts’ by any people in the company they insured. Mrs Burnett-Grant believed that this insurance policy entitled her to damages, and so the matter went to Court.
The issue of the scope of ‘intent’ exclusion clauses in insurance contracts was raised. Hanover Insurance argued ‘intent’ exclusion clauses were of vital importance as insurers cannot provide accurate premiums without them, and the insurance sector could not survive without them. Hanover argued that if anyone to be prosecuted for a crime then technically ‘intent’/mens rea (guilty mind) has been shown. Hanover therefore argued that this criminal definition of ‘intent’ was the meaning of intent in the contract, and ensured they were not liable. Hanover argued that this insurance policy only covered civil accidents, not crimes. Mrs Burnett-Grant argued that ‘intent’ did not have such a broad meaning as this. Mrs Burnett-Grant argued that ‘intent’ meant a premeditated intent to carry out a crime, which veered well away from the person’s duties, which she argued was certainly not the case in this instance. Mrs Burnett-Grant argued that a bouncer dealing with a disturbance with a patron in an over-aggressive and emotional manner, and veering from standard protocol in the heat of the moment using mma tactics rather than by-the-book bouncer ones, did not sufficiently veer from the course of normal duties to invoke the intention clause.
Judgment:
The Court upheld the arguments of Mrs Burnett-Grant. The Court affirmed that in this case the bouncer’s act arose from the natural course of him carrying out his job in an over-aggressive manner, which naturally led to him veering away from bouncer protocols in dealing with conflicts, rather than it being callous and premediated. The Court further affirmed that although the bouncer’s actions were criminally ‘reckless’, they were not wickedly ‘intentional’ under criminal law, which is a higher level of intent under criminal law leading to a higher subsequent level of punishment under criminal law, and the intention clause only covered criminal acts were done with ‘intent’, rather than criminal acts done ‘recklessly’. In short, the Court held that Mrs Burnett was entitled to damages for the losses suffered from Hanover Insurance under the public liability insurance policy.
Ratio-decidendi:
‘64. Although I accept the insurer’s argument that “deliberate acts” in clause 14 of the policy means an act carried out with an intention to injure, the insurer is unable to establish that there was such an intention on the facts. I reject the argument that “deliberate acts” includes recklessness and, if it did, that it would make any difference on the facts as found. It follows that clause 14 does not apply.’, Lord Hamblen at 64
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.