Deliberating The Meaning Of Deliberate

Published date25 May 2021
Subject MatterInsurance, Litigation, Mediation & Arbitration, Insurance Laws and Products, Personal Injury
Law FirmSKRINE
AuthorMs Loo Peh Fern and Siew Ka Yan

Introduction


It is common knowledge that exclusion clauses in an insurance contract, being the sword and shield of insurers, frequently form the heart of disputes in the adjudication of insurance claims Insurance policies generally do not cover losses or damage arising from intentional acts of harm by the insured, owing to the underlying nature of insurance being a contingency and due to public policy reasons - an insured cannot be allowed to consciously manipulate and manifest the risk to benefit from the same nor should it be allowed to benefit from its own wrongdoing. Thus, the mental element often becomes an important point for consideration.

The recent UK Supreme Court case of Burnett or Grant v International Insurance Company of Hanover Ltd [2021] UKSC 12 provides guidance and dissects the meaning of "deliberate acts" which was present in the exclusion clause of an insurance contract.

Facts of the Case


The Respondent is the widow of the late Mr Craig Grant, who died at a bar in Aberdeen during an altercation with Mr Jonas Marcius, a bouncer who ejected him from the premises and applied a neck hold in restraining him, ultimately causing Mr Grant's death.

The Appellant is the insurer of Mr Marcius' employer, Prospect Security Ltd, under a public liability policy which covers inter alia, vicarious liability for the wrongful acts of their employees.

The Respondent initially commenced proceedings claiming damages against four defendants, namely, Mr Marcius, Prospect Security Ltd the Appellant and Blue Inns Ltd (who operated the bar) with the claim finally progressing against the Appellant only. The Respondent succeeded in the lower courts.

The Appellant appealed to the Supreme Court and the core issue was whether the Appellant is, under the policy, entitled to rely on an exclusion of "liability arising out of deliberate acts" of an employee.

The Policy and the Exclusion Clause


The policy provides that the insurer will indemnify the insured in respect of sums the insured is liable to pay arising out of "accidental injury to any person"; with "injury" being defined as "bodily injury death illness disease or shock causing bodily injury".

The relevant exclusion clause was Clause 14 which specifically excludes the insurer from liability arising out of "deliberate acts wilful default or neglect" by the insured or its employees.

Principles of Interpretation


It was common ground that the policy is to be interpreted objectively by asking what...

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