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OUTER HOUSE, COURT OF
SESSION
[2009] CSOH 27
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A50/08
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OPINION
OF J G REID, QC
(Sitting
as a Temporary Judge)
in
the cause
JULIE
ANN WARD
Pursuer;
against
NORWICH
UNION INSURANCE LTD
Defenders:
ннннннннннннннннн________________
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Pursuer: Benyon; Lefevre Litigation
Defenders: Upton, HBM Sayers
26 February 2009
Introduction
[1] This
is a claim for payment under an Accidental Death Benefit Insurance Policy ("the
Policy") by the widow of Ivan Ward ("Mr Ward"), a fisherman who died in the
early hours of 5
January 2005 at Peterhead
Harbour
in the tragic circumstances described below.
He was 32 years old when he died.
He was the proud father of the three young children of his marriage,
Jay, Dana and Billy, then aged 6, 4, and about fifteen months.
[2] When
the case called for proof before answer on Tuesday 11 November 2008,
counsel for the defenders, Michael Upton, moved the court to allow the Record
to be opened up and amended in terms of his Minute of Amendment and the pursuer's
answers, all as adjusted. Counsel for
the Pursuer, Neil Beynon, moved the court to discharge the proof, essentially
on the ground that the crew of which Mr Ward had been a member had only agreed
to be precognosced very recently and he wished time to consider their
statements, take instructions thereon and draft further adjustments. A motion to discharge the proof on what
appears to have been somewhat different grounds, was refused by Lord Brodie on 30 October 2008.
[3] After
hearing counsel, I refused the motion to discharge, but allowed the pursuer the
rest of the day to consider her position and make and intimate any further
adjustments to her Answers thought necessary.
Some late productions were also tendered to which neither party
objected. When the case called on
Wednesday 12 November, adjustments had been exchanged, and
after further minor adjustments were made at the Bar (including adjustments for
the Defenders), I allowed the pleadings to be amended. Both counsel indicated that they were ready
to proceed. The evidence was concluded
on Friday 14 November and I heard closing submissions on 26 November
2008.
[4] Finally,
I should record that there is pending before the Court, an action at the
instance of Mrs Ward, as widow, guardian and executrix, against the owners and
master of the Mizpah, for damages
arising out of Mr Ward's death. The
pleadings in that action are not before me.
A proof was due to take place in December 2008 but that action has been
sisted pending the outcome of the present action.
The
Issue
[5] The
issue is whether liability has been established under the Policy. The total accidental death benefit under the
policy was г36,000. The relevant parts
of the Policy are as follows:-
"In
return for having received and accepted your premium we will pay the benefit(s)
shown on your policy schedule if during the period of insurance any Insured
Person suffers accidental bodily injury which is the sole cause of death.......
Accidental bodily injury This means bodily injury resulting solely and
directly from accidental outward violent and visible means and does not
include any sickness, disease or any naturally occurring condition or
degenerative process or the result of any gradually operating cause.
Exclusions We
will not pay for accidental bodily injury caused by or
resulting from
War
War
Invasion
Activity of a foreign enemy
Hostilities or warlike operations.....
Civil war
Revolution, rebellion ............
Civil Commotion
Military power
Usurped power
Radioactivity We will not pay for accidental bodily
injury which involves:
Ionising radiation .........
The radioactive, toxic, explosive or other
dangerous properties of explosive nuclear equipment
The Insured Person serving on active duty in any
Armed Force
Suicide or intentional self-injury
Flying as a pilot or crew-member of any aircraft
Intoxicating liquor or drugs taken by the
Insured Person (except drugs taken under medical
supervision but not for the treatment of drug addiction)"
[6] I
have underlined what appeared at the end of the day were the critical elements
of the Policy conditions.
Facts
General
Background
[7] Mr
Ward was a member of the crew of the Mizpah II, (the Mizpah) a fishing vessel based in Shetland. The Mizpah
is an 87 foot trawler built in about 1987. The skipper was David Robertson. He is also a director and one of the five
shareholders in the company which owns the Mizpah
(the Mizpah Shipping Company Ltd).
The other members of the crew at the time were the skipper's son Tom,
then aged sixteen years, Robert (Bobby) Shearer, and Garry Smith. Mr Ward had worked on the Mizpah II for about
two years. He was the only member of the
crew who did not live on the Shetland Isles.
He resided at Rosehearty, Aberdeenshire with his wife and family.
[8] On
or about Boxing Day 2004, the Mizpah
with the above crew, including Mr Ward, and skippered by David Robertson
set off on a fishing trip in the vicinity of the Faroe
Islands. Mr
Ward had worked regularly on the Mizpah for
at least the two preceding years. On the
morning of 4
January, 2005, they arrived at Peterhead
Harbour,
landed their catch, re-berthed at another part of the Harbour and carried out
the usual tidying and cleaning up operations.
The vessel was moored with its aft end almost flush to the quayside,
with the port side closer to the quayside than the starboard side. There was no gangway or walkway between the
quayside and the Mizpah. In the course of these operations, in the
afternoon, Mr Ward consumed several (perhaps two or three) small (330ml)
bottles of beer or lager plus a small quantity of whisky. Mr Smith also drank some beer or lager and
some whisky. Tom Robertson had a bottle
of beer or lager. Robert Shearer also
had a bottle of beer. In the course of
the afternoon, the skipper raised the possibility of going ashore for a
meal. Only Mr Shearer seemed interested
in a meal with the skipper. It was
generally assumed, although it was not discussed, that Mr Ward would return
home to Rosehearty at some point that evening.
Early
Evening
[9] The
crew completed their work by between about 5pm
and 6pm. Mr Ward was probably the first to leave
the Mizpah, at about 5.45pm. He left his bag with work clothes and other
items on board (There was a washing machine and tumble dryer on board). He went to the Union Bar which was a few
minutes walk from the Mizpah and
about a quarter of a mile away. Mr Smith
and Tom Robertson were next to leave the Mizpah;
they left together about twenty minutes later and joined Mr Ward in the
Union Bar. Robert Shearer and David Robertson
were the last to leave the Mizpah. They left together between about 6.30pm and 7pm. They joined the others in the Union Bar. They all drank beer or lager at the Union Bar
for an hour or so. In the course of that
period, between about 7pm
and 9pm
Mr Ward telephoned his wife using a mobile phone borrowed from Gary Smith. His wife was at home at Rosehearty, by
Fraserburgh, with the children and a family friend. During that telephone call, Mr Ward also
spoke to the family friend and to the elder children. He told her he was going for a few drinks and
a meal and that she should pick him up the following day. Mr Ward did not tell anyone else who gave
evidence that he planned to spend the night on the Mizpah.
[10] While
at the Union Bar on this first occasion, Mr Ward probably consumed at least
three pints of beer. Mr Smith consumed
about three pints of lager or beer. It
is not entirely clear how much David or Tom Robertson or Robert Shearer
consumed on that first visit to the Union Bar, but was probably in the order of
two or three pints of beer or lager each
Later
in the Evening
[11] Later in the evening, at about 9pm, Mr
Ward, Tom Robertson, and Gary Smith went to Bailley's Bar, where they all
continued to drink beer or lager. They
were there for about two hours. Gary Smith consumed two pints and two whiskies
while there.
[12] David
Robertson and Robert Shearer did not go to Bailley's but went to a local Indian
restaurant for a meal. They were in the
restaurant for two or at most about two and a half hours. While there Mr Robertson drank one or two
glasses of wine and a pint of beer. Mr
Shearer drank lager.
[13] Tom
Robertson, Mr Ward and Mr Smith left Bailley's Bar about 11pm or shortly before
and went to another bar, Mambo's, which
was about a hundred yard's walk or so.
David Robertson and Robert Shearer left the restaurant about 11pm, and
met up with the crew at Mambo's Bar.
Some members of the crew of the Alison
Kay were also there. While at
Mambo's Mr Ward was told off for being loud
and drunk, by one of the members
of the crew of the Alison Kay. Mr Smith consumed two pints and two
whiskies while at Mambo's
[14] At
some point, Mr Ward left Mambo's on
his own.
What he did or where he went is unclear but he must have returned
eventually to the Union Bar.
Second
Visit to Union Bar
[15] The rest of the crew of the Mizpah and skipper Robertson left Mambo's at about Midnight and
returned to the Union Bar, where they continued drinking. Mr Ward was already there, although it
appears that Mr Ward did not drink anything because the staff refused to serve
him. The others (ie the Robertsons and
Shearer) joined them a little later. By
this stage, at some point between about midnight
and 1am,
Mr Ward was unstable on his feet. At one
point, he knocked into a table causing glasses to fall to the floor and
break. He was told to sit down by one of
the crew of the Alison Kay, which he
did. By this stage Mr Ward had a
cut or scrape above his eye and some blood on his hands. He did not to be aware of his injury and
offered no explanation for it to the others.
[16] The
Union Bar eventually closed for the night and everyone left. This was at some point between about 1am and 1.30am,
probably nearer 1.30am
than 1am. By this stage, Mr Ward had spent most of the
previous six hours drinking. He had
consumed at least nine pints of beer and some whisky. He had not eaten much at all in the previous
twelve hours. While at the Union Bar on
this second occasion Mr Smith consumed one pint of beer.
Return
to the Quayside
[17] On
leaving the Union Bar, the skipper, David Robertson went off with several crew
members of the Alison Kay, at their
invitation, to that vessel which was moored some distance from the Mizpah, perhaps about a quarter of a
mile away. When he left, his son (Tom),
Robert Shearer, Gary Smith and Mr Ward were still at the Union Bar or were in
the process of leaving. Tom Robertson
and Gary Smith went to a local takeaway to buy a carry-out. Mr Ward, who was unsteady on his feet,
assisted by Mr Shearer, made his way back to the quayside where the Mizpah was berthed.
[18] As
already noted the Mizpah was berthed
with the stern almost parallel with the quayside wall. The port-side stern quarter was no more than
about a foot; the starboard-stern quarter was between about two and a half to
four feet from the quayside wall, probably nearer four feet than two and a half
feet. The obvious point from which to go
on board was at or about the port-side stern quarter.
[19] Of
the Mizpah crew, Mr Ward and Mr
Shearer were first to arrive back at the quayside. Mr Shearer and Mr Ward attempted to
board the Mizpah via the Starlight Rays, an adjacent vessel
berthed on the port side of the Mizpah. Mr Ward, aided by Mr Shearer, managed
just to get on board the Starlight Rays but
fell or slumped as soon as he had done so.
Mr Shearer managed to get Mr Ward back on to the quayside, where he
stood and staggered about on the quayside in the vicinity of the stern of the Mizpah.
Shortly thereafter, Tom Robertson and Gary Smith arrived at the
quayside. They went on board. Mr Shearer then boarded the Mizpah from the quayside
Last
Few Minutes
[20] Tom Robertson shouted from the Mizpah to Mr Ward to come to the stern
of the Mizpah. He did not do so, but continued to stagger
about on the quayside. Tom Robertson then
stepped back on to the quayside to assist Mr Ward. At this point, Mr Ward was not close to
the water but several yards in from
the edge of the quayside wall. Tom
Robertson took hold of Mr Ward and spoke to him with a view to getting him on
board. Tom Robertson could obtain no
sensible response from Mr Ward. Mr Robertson
turned and made his way to the Mizpah. He was just about to go on board and had his
back to Mr Ward. At this point Mr
Shearer and Mr Smith were on board the Mizpah. Mr Shearer saw what happened next. Mr Robertson and Mr Smith did not.
[21] Mr
Ward had continued to stagger about, this time in the vicinity of the edge of
the quayside. At a point about eight
feet from the starboard quarter to the starboard side (to the right as one
faces the Mizpah) Mr Ward staggered
or swayed with his back to the sea, stooped a little and fell backwards into
the water. All present must have heard
the splash although none seemed to have seen Mr Ward enter the water, not even
Mr Shearer. Mr Ward had never learned to
swim. He was unable to save
himself. At one point, Gary Smith threw
or dangled a piece rope. Mr Ward was
unable to catch hold of it. Neither Mr
Shearer nor Mr Smith thought quickly enough to throw one of the several
lifebelts which were on board. Whether
that would have saved Mr Ward is, on the evidence, speculation. Mr Ward eventually disappeared under the
water and drowned.
[22] Immediately
before he fell from the quayside, Mr Ward was not attempting to board the Mizpah.
Had he fallen into the gap between the starboard side quarter of the
Mizpah and the quayside wall, he
would likely have suffered a significant injury as a result of striking either
the Mizpah or the quayside wall. No such injury was observed on his body when
it was subsequently examined under the supervision of Dr Grieve (see
below).
The
First Rescue Attempt
[23] Bravely,
Tom Robertson, who heard the splash but did not see Mr Ward fall into or enter
the water, reacted by scrambling down some tyres on the quayside wall and
jumped, fully clothed and still wearing his shoes, into the dark, cold harbour
water in an attempt to rescue Mr Ward.
Mr Ward was about a metre or so from the harbour wall. He made physical contact with Mr Ward but was
unable to keep Mr Ward's head above water.
They separated and Tom Robertson found himself in difficulties too. At this point, he was in the water on the
starboard side of the Mizpah about
three or four metres from the quayside wall.
Mr Ward was closer to the wall and probably closer to the Mizpah.
It need hardly be said that although there was no evidence of the
depth of the harbour water, it was too deep for either of them to stand on the
harbour floor or seabed.
The
Second Rescue Attempt
[24] It
is necessary to turn back the clock a little.
In January 2005, Steven Ritchie, aged 19 years, was an apprentice
mechanical technician. He now works
offshore for BP. He was also a member of
the local Lifeboat Rescue Service. He
comes from a family of fishermen. In the
early hours of the morning of 5
January 2005, he was in bed but could not
sleep. He got up and drove to a 24 hour
garage and then down to Peterhead harbour.
He lived locally. He had no
connection with the Mizpah and did
not know the skipper or any of the crew.
[25] He
drove past the Mizpah to the end of
the Harbour, turned and drove back in the general direction of the Mizpah.
He drove about 5 or 6 metres past the Mizpah and stopped. The driver side window of his car was
down. He heard a splash. He reversed his car back perhaps eight or
nine metres and stopped at a point about where the photographer must have been
standing when photograph No 6/13/1
was taken. He got out of his car and
went along the quayside to where the Mizpah
was berthed. He saw Mr Ward and
Mr Robertson in the water. They
were about 2.5 metres apart Mr Ward was nearer the quayside than Mr Robertson. Mr Ritchie returned to his car and telephoned the emergency services. He removed some of his clothing, climbed
half way down the harbour wall ladder and then jumped into the water on the
starboard side of the Mizpah (the
harbour wall ladder was several metres to the right of the starboard side of
the Mizpah facing the water).
[26] Mr
Ritchie decided to rescue the
individual further away from the harbour wall (Robertson). He swam to Mr Robertson and brought him back
to the harbour wall ladder. He could not
persuade Mr Robertson to climb up the harbour wall ladder. Mr Ritchie put Mr Robertson over his shoulder
and climbed up the harbour wall with Mr Robertson over his shoulder. He laid Mr Robertson down on the quayside and
turned to look for Mr Ward. He asked
Smith and Shearer (who were on board the Mizpah)
where the other man (Mr Ward) was. They
or one of them said right in front by
which they meant a point near the quayside wall and the starboard stern
quarter. By that stage Mr Ward was
motionless in the water. Mr Ritchie
dived under the water several times but could not find Mr Ward. Whatever current existed must have begun to
carry Mr Ward away from the immediate vicinity of the starboard side of the Mizpah.
Emergency
Services
[27] The
police arrived at the scene at about 2am.
PC Bosequet (who gave evidence) and her colleague, PC Duncan (who did
not) were first to arrive. There being
no sign of Mr Ward, the lifeboat was launched and, using search lights, Mr Ward's
body was located and identified at about 3am. Without reference to any notebook, report or
any contemporary record, PC Bosenquet said in evidence that she took a
statement from Tom Robertson at the quayside; that he said that as Mr Ward
tried to get on board the Mizpah he
slipped or fell (she could not remember which) into the water. She took a similar statement from him at the
local hospital. She also spoke to David
Robertson and Stephen Ritchie, but again no contemporary written record was
produced. Other officers spoke to the
various crew members but there was no written record or report of these
interviews produced at the proof. A report
was submitted to the Procurator Fiscal but this was not produced. No criminal proceedings ensued.
[28] David
Robertson heard of the incident on the radio while on board the Alison
Kay. He ran to the scene. The police were already present and Tom Robertson
was lying at the quayside. The police
restrained Mr Robertson who was trying to reach his son. A short struggle ensued. Mr Robertson cannot be criticised for his
conduct at this point. His reactions
were natural. He feared for his son's
life and wanted to be with him. Tom
Robertson was taken to hospital by ambulance.
His father accompanied him.
Subsequent
Events
[29] Mrs
Ward was informed of her husband's tragic death, when they called at her home
at about 6am
that morning.
Other
Matters
[30] There
were at least three lifebelts on the Mizpah. None was deployed that night.
[31] Photographs
of the scene (No 6/13 of process), used extensively in the course of the proof
were taken by the witness, Kevin Brett, a Scenes of Crime officer then employed
by Grampian Police, at about 11am on 5 January 2005. The Mizpah
was still moored at the same berth as it had been in the earlier hours of
the morning
[32] Dr
James HK Grieve, MB, ChB., FRCPath, Senior Lecturer in Forensic Medicine at Aberdeen
University,
was present at and carefully supervised a post mortem examination at Aberdeen
Mortuary on 6 January
2005 carried out by a junior colleague, who was
a middle grade trainee. Dr Grieve signed
a report (No 6/4 of process), dated 26 January 2005, of that
examination. Among other things, the
report notes a very trivial graze to the right eyebrow. This was consistent with contact with a hard
surface. The report, he said, was a typical report of a man who had drowned in
salt water.
[33] Professor
Alexander Forrest gave evidence about the effects alcohol. He is a former Consultant in Clinical
Chemistry and Forensic Toxicology to the Central Sheffield Teaching Hospitals
NHS Foundation based at the Royal
Hallamshire
Hospital
in Sheffield; he
was also Honorary Professor of Forensic Chemistry at the University
of Sheffield. He has had considerable experience in the
toxicological investigation of fatal road traffic accidents. He had been engaged by the defenders to
review the circumstances surrounding Mr Ward's death. He reviewed various documents and produced a
report in December 2005 (No 7/6/ of process).
He noted that the post mortem report disclosed a blood alcohol
concentration of 271 milligrams of alcohol per 100 millilitres of blood with a
urine alcohol concentration of 455 milligrams of alcohol per 100
millilitres of urine. In his report he
stated that this could only be associated with the consumption of a large
amount of alcohol and would be associated with impairment of balance, co-ordination,
judgement and impairment of the ability to take appropriate action (when in
water) to stay alive. In particular, he
noted, in evidence, that night vision was impaired; and that there was a higher
risk of dying in water when drunk. A
drunk man is less likely to take steps to save himself. He also described the impairment of various
faculties such as balance, co-ordination, judgment of distance and
direction. His overall conclusion was
that while the medical cause of death was drowning as Mr Ward did not drink
himself to death, his intoxication with alcohol made a very significant
contribution to the sequence of events which led to death.
[34] On
behalf of Mrs Ward, there was lodged a letter from the Procurator Fiscal at
Peterhead to the defenders dated 4
April 2005. The purpose of lodging this letter was to
refer to the account in the letter of what happened to Mr Ward. The letter states inter alia that "It appears he slipped on rubber tyres that were
lining the harbour wall and fell into the water". The evidence I heard does not support that
statement. However, the letter also
describes what happened as a "tragic accident".
Submissions
[35] Both
counsel produced written submissions which they amplified at the hearing on the
evidence. What follows is but a summary
of their carefully presented submissions and arguments.
(a) Pursuer
[36] Mr
Benyon began by referring to what he considered to be the relevant principles
of contractual construction under reference to McBryde on the Law of Contract in Scotland, 3rd Edition paragraphs
8.06, 8.08, 8.10, 8.12 and 8.17, and
to MacGillivray on Insurance Law 10th
Edition paragraphs 11.6-8. He emphasised the need to keep in mind
the precise wording of the contract which raised four issues of fact, namely
(a) bodily injury - here, he said,
there was trauma from an external source, (b) violent - reference was made to Reynolds
v Accidental Insurance Co 1870 22
LT 820, (c) external means and (d) independently
of all other causes. He referred to Clarke, the Law of Insurance Contracts 4th
Edition pages 530-537, 554 & 557,
Macleod by New Hampshire Insurance Co 1998 SLT 1191 at 1195L and 1196C-D, Lawrence v Accidental Insurance Co 1881 7 QBD 216, and MacGillivray at paragraph 25.21 for discussion of the meaning to be given to accident and accidental.
[37] On
the evidence, Mr Benyon submitted that (i) Mr Ward entered the water either at
a gap between the stern of the Mizpah
and the harbour wall, or directly against or near to the starboard edge of the
stern. He relied, particularly on the
CCTV footage timed at about 01.49 to 01.51 and the evidence of Mr Ritchie. He submitted that Mr Ward died for the
following reasons:- (i) he was a complete non-swimmer, (ii) Tom Robertson, Gary
Smith, and Robert Shearer were to intoxicated to make use of and throw in the
lifebelts which were readily available, (iii) the rescuer, Mr Ritchie, elected
to rescue Tom Robertson first of all; had Mr Ritchie elected to rescue Mr Ward
then there was every likelihood that Mr Ward would have survived. The consumption of alcohol by Mr Ward was not
a cause of the drowning or in any event was not a relevant or proximate cause
of his death by drowning. Thus, on the
evidence, the pursuer has established that the death of Mr Ward was due to
accidental bodily injury, namely drowning in the salt water of Peterhead
Harbour. A reasonable and ordinary bystander (adopting
the test in Macleod) would have
observed that Mr Ward was not able to remain above the water because he
was unable to swim, was not rescued and had not been thrown a lifebelt. On no view, could his drowning be described
as an intended result or consequence on the part of Mr Ward. Adapting the reasoning in the case of Lawrence, the
clear and proximate cause of his death was accidental drowning. The high level of alcohol which it was
accepted was present within Mr Ward at the relevant time was simply not
material to the proper construction and application of the policy of insurance
and could not be relied upon by the defenders to avoid liability.
[38] Mr
Benyon attacked the reliability and credibility of the evidence of the skipper
and members of the crew of the Mizpah
on various grounds, and, in particular, that they had all consumed excessive
quantities of alcohol in the course of the evening in question.
[39] There
was no dispute on quantum (г36,000 per paragraph 2 of the Joint Minute). On the question of interest, Mr Benyon
initially submitted that interest at the judicial rate should be payable from
the date when the claim was rejected namely 12/4/05; the
defenders can have had no proper basis for withholding payment from that
date. He referred to McBryde at paragraph 22.126 page 670. His
ultimate position was that interest should be payable from the date of Mr
Ward's death.
(b) Defenders
[40] Mr
Upton submitted that Mr Ward's death was not caused by accidental means within
the meaning of the policy. The onus was on the pursuer. Mr Ward's own reckless conduct was the
cause. Injury or death which is an
expected or probable result of reckless conduct is not accidental. It could not be
said that drowning is not a natural or probable consequence of a non-swimmer
choosing to stagger and stumble in a state of extreme intoxication in close
proximity to an unguarded drop into deep, cold water. Mr Ward knew or ought to have known that he
was taking the risk that his conduct would and in any event might cause him
bodily injury. He relied on Clarke, 5th Edition paragraphs
16-3A, 16-3C3, and 17-5A,C,E, Dhak v Insurance Co of North America (UK) Ltd 1996
1 WLR 936 (C.A.) at 639-641, De Souza v Home & Overseas Co Ltd 1995 LLR 453, Clidero v Scottish Accident Insurance Co. Ltd 1892 19R 355 at 362, MacGillivray at
paragraph 25.33, 34, Hamlyn v Crown Accidental Insurance Co 1893 1 QB 750, Stair Memorial Encyclopaedia of the
Laws of Scotland volume 12, paragraph 844 at page 424. Even if the evidence was
equally consistent with the death having resulted solely and directly from
outward violent and visible means that can be described as accidental, and with its not having so resulted accidentally, then the pursuer's case
must still fail, there being no presumption that an event was an accident.
[41] Mr
Upton made very detailed submissions on the evidence. In essence, he submitted that (i) Mr Ward was
staggering around close to the edge of the quayside and fell into the water at
a point about eight feet from the starboard quarter of the Mizpah, (ii) Mr Ward was not attempting to embark on the vessel
when he fell into the water, (iii) he had no reason to do so, (iv) he was
drunk, (v) the hearsay evidence of PC Bosenquat of what Tom Robertson said to
her about what happened, albeit given in good faith by the officer, was
unreliable in the circumstances, and Tom Robertson's evidence at the proof
should be preferred.
[42] As
for the policy exception, Mr Upton submitted that Mr Ward's death was caused by
or resulted from intoxicating liquor taken by him. While accepting that the onus fell on the
insurers to prove the facts to bring the casualty within the exception (Clarke, paragraph 16-3B2), he submitted
that as, on the evidence, Mr Ward was very drunk stumbled and fell into the
sea, an inference or presumption arises (Dickson
on Evidence volume 1 paragraphs 35, page 32-33, paragraph 109, page 93, and
paragraph 112, page 96) that he did so because he was intoxicated. Mr Ward's blood/alcohol level and the
unchallenged evidence that such a level would impair a man's judgment and
balance places the onus of proof on causation on the pursuer. The pursuer led no evidence to rebut the
presumption. In any event, on the
evidence it was plain that Mr Ward's death was caused by and resulted from
intoxicating liquor that he had taken with the meaning of the policy exception
clause. Reference was made to Clarke paragraph 19-2C page 570,
paragraph 25-4, Leyland Shipping Co Ltd v Norwich Union Fire Insurance Society Ltd 1918
AC 350, Pawsey v Scottish Union & National Insurance Co 1907 reported in Welford & Otter-Barry, Fire Insurance
(2nd edition) page 505-6, and
Ivamy's General Principles of Insurance Law
(6th edition) pages 415-417)
[43] On
the question of interest, Mr Upton submitted that if the defenders were liable
then interest was due from the date of citation, being a judicial demand for
payment, by which date it could be said that the defenders were wrongfully
withholding payment. He drew my
attention to but did not discuss the following:-Scottish Law Commission, Discussion Paper on Interest on Debt and Damages
No 127 (January 2005 paragraphs 2.23 and 6.10, Napier v Gordon 1831 5
W & S 745 (HL) at 758, Blair's Trs v Payne 1884 112R 104 at 110, Greenock Harbour Trs v Glasgow & SW Ry Co 1909 2 SLT 53
(HL) at pp56-7, Somervell's Tr v Edinburgh Life Assurance Co 1911 SC
1069 at 1072, FW Green & Co Ltd v Brown & Gracie Ltd 1960 SLT 43 (HL)
at 44, Hunter v Livingston Dev. Corp 1984 SLT 533 at 535, Trans Barwil Agencies (UK) Ltd v John S Braid & Co Ltd (No 2) 1990 SLT 182, and Wilson Debt (2nd ed) para
11.7
Discussion
of Evidence
[44] This
was an emotionally charged proof. Mrs
Ward was naturally upset while giving evidence but she found the fortitude to
remain in court to hear the other witnesses give evidence. Gary Smith, and Tom Robertson broke down at
some point while giving evidence. There
is no shame in this. Witnessing the moment
of death of one's son or a friend is a deeply harrowing experience. Recounting that experience in public is
obviously distressing.
[45] I
found all the witnesses to be generally reliable and credible. As for the skipper and crew, the evidence of
each was generally consistent with the evidence of the others with minor
differences of detail which are to be expected.
They all had a fair amount to drink that night and none would ever
expect to have to recall a few years later the detail they were asked about in
the course of their evidence. Mr David
Robertson said that he played down the amount of drink consumed by Mr Ward so
as to "cushion the blow" for Mrs Ward. I
believed him. He also frankly stated
that he was very disappointed to receive a writ in his capacity as master of
the Mizpah.
[46] There
were some discrepancies among the accounts of the various witnesses about the
order of events in the course of the evening, such as who left the Mizpah with whom, timing and who left Mambo's first. That is to be expected. What was abundantly clear on the evidence was
that they all consumed a significant amount of alcohol, some more than others
and Mr Ward more than most. In any
event, for one reason or another, he was suffering to the greatest extent from
the effects of his consumption of alcohol that evening.
[47] Dr
Grieve and Professor Forrest gave their evidence with great care and
clarity. Their reliability as experts is
not in doubt.
[48] Whatever
Tom Robertson may have told the police in the early hours of the morning of 5 January,
his evidence at the proof was consistent with the other evidence I heard. Whether he was still in shock when speaking
to the police or whether the police misinterpreted his evidence does not,
standing all the other consistent evidence, which I accept, matter at the end
of the day.
[49] The
detail of the precise times and who went where with whom, and indeed the
precise amount of alcohol consumed by Mr Ward that evening are minutiae which
are, ultimately, not critical. What is
relevant and incontrovertible on the evidence is that by the end of the evening
Mr Ward was unfortunately not only drunk but very drunk as he made his way back
to the Mizpah. When he returned to the quayside he was in a
very drunken state and condition. He was
swaying and staggering about. There is
no need to extend the length of this Opinion by quoting from the overwhelming
evidence of his unfortunate state and condition.
[50] In
summary, Mr Ward returned to the Mizpah after
an evening of heavy drinking. While
alcoholic beverages have a varying effect on different individuals, it is plain
on the evidence that Mr Ward had taken intoxicating liquor to an extent which
disturbed the balance of his mind or the quiet calm, intelligent exercise of
his faculties. As a result of his
inability through the excessive consumption of alcohol properly to control his
movements, he staggered, stumbled or fell from the quayside in the dark into
the cold dark water of the harbour and drowned.
He was not attempting to board the Mizpah
immediately before he fell into the water.
CCTV
Footage
[51] This
was transferred on to a DVD, played on a large screen in court and operated by
a laptop computer. The time was
displayed sometimes on the footage, but not always. There was an indexing system displayed by the
computer's software program. However, a
different software program was used on different days in court which added to
the difficulties. The footage was
difficult to follow although parts had been highlighted or bubbled. Although much time
was taken with the witnesses watching and commenting on the footage it is not
necessary to refer to such evidence in detail.
The precise location of the camera was not identified and no evidence was
given about the camera, its operation or the transcription of the footage on to
DVD. Both counsel, however, accepted the
genuineness and authenticity of the footage.
[52] The
footage does nevertheless show inter alia
(i) that in order to board the Mizpah
that night it was necessary to step
down from the quayside to the vessel, (ii) the arrival and presence of Mr
Ritchie's car (1.46.-1.49), (iii) Mr Ritchie appearing to phone the emergency
services while standing by his car (1.53.19 approx), and (iv) the arrival of
police at about 1.56.36 approx. The
footage also shows various figures from time to time. One of the difficulties is that much of the
important action takes place at the
bottom right hand corner (and beyond) of the footage as depicted on screen
whether that is a large screen such as the screen used in court, or a small
computer monitor. The footage was less grainy when viewed on a laptop or
monitor.
Photographs
6/13 of process
[53] Photographs are notorious for
extending the length of proofs and creating rather than resolving doubts and
ambiguity. Witnesses find it hard to
relate what they remember to what they see in the photographs and even harder
to describe what they see so that it can be understood with precision. Eventually, to expedite matters, some witnesses
marked some of the photographs with a pen.
One point which came out in evidence e.g. the evidence of David
Robertson that the Mizpah was at a
lower in the water between 1.30am
and 2am
on 5 January, than when the photographs were taken later that morning at
about 11am. Thus, in the early hours of the morning
boarding the Mizpah involved stepping
down (as the CCTV footage also shows)
from the quayside to the vessel. This
has to be kept in mind when viewing the photographs.
Conclusions
Evidence
[54] My
factual findings and conclusions on the evidence are set out above.
Accidental
means
[55] Mr Upton argued that Mr Ward's death
was not caused by accidental means. In my opinion, it is plain that what
occurred was a tragic accident. Any
reasonable person of ordinary intelligence considering the facts and
circumstances as I have found them to be and set out above would reach that
conclusion. Any other conclusion is
absurd. Prima facie therefore Mr Ward's death was caused by accidental means within the meaning of
the Policy. The authorities cited to me
do not require a different conclusion.
[56] In
Macleod, the pursuer strained his
back while throwing a wheel into the back of a pickup truck. The policy under which he made a claim
defined bodily injury as that caused
by accidental, violent, visible and
external means. Lord Nimmo Smith,
rejecting the defender's argument at procedure roll that the means by which the
pursuer was injured were deliberate, intended, probable and foreseeable, held inter alia, that accidental should be given its ordinary meaning (at 1195L); the
crucial question was whether the means of causation could properly described as
accidental. Lord Nimmo Smith carefully
analysed the principal authorities including
Clidero, Connelly, Dhak, Hamlyn and Glenlight.
I gratefully adopt that analysis.
His Lordship observed that one way of looking at the matter was to ask
whether an onlooker of ordinary intelligence would regard the events as an
accident. I agree. This approach is consistent with the modern
approach to the principles of construction applicable to commercial contracts,
which include insurance contracts (McBryde
paragraphs 8-10 and 8-12; MacGillivray page
277 section 11-1). I also agree that the
question is not whether the action which resulted in the outcome was
deliberate, but whether the outcome was intended (1196C). This approach emphasises the nature of the
final result, although the chain of events leading thereto (sometimes referred
to as accidental means) must also be
considered. The distinction between
accidental means and accidental results, if any (cf Glenlight at page 245), is often difficult to articulate and apply
in practice. In Glenlight, where a passenger on a ferryboat drove his car along the
deck of the vessel, over the loading ramp and into the sea, and drowned, in the
mistaken belief that the ferryboat had reached the pier, Lord Hunter described
these circumstances as an accident and the means directly causing death as
accidental (page 242 column 2). Lord Robertson
reached the same view (243 column 2).
Lord Stott described an accidental occurrence as an occurrence
brought about by accidental means (at page 245 column 1). He saw no substance in a distinction between
an accidental injury and an injury caused by accidental means.
[57] While
here, it might be said that Mr Ward chose or intended to get drunk, he did not intend to fall into the harbour; although a
possible outcome, it can hardly be said that it is the natural and probable
result of an evening's heavy drinking in Peterhead. I find it difficult to classify what happened
as the taking of a calculated risk by Mr Ward that he if he drank heavily he
might fall into the harbour and die (cf Dhak
at 949-950).
[58] Mr
Benyon referred to Lawrence, which
was not cited in Macleod. There, the deceased had a fit while
waiting at a railway platform, fell on to the track and was killed by a passing
train. The policy contained an exception
for cases of death arising from inter
alia fits. In a Special Case before
Denman J and Watkins William J, the former held in favour of the
deceased's representative on the basis of an earlier case in which it had been
decided that where a man, while crossing a river, who was seized with a fit,
fell and drowned, the death did not arise from the fit and so the policy
exception for such disease did not
apply and the insurers were liable; he also relied on the precise wording of
the policy Watkins William J
adopted a more principled approach. He
held that the fit was not the proximate and immediate cause of death. Therefore death did not arise from the
fit. In particular, his Lordship looked
only at the immediate and proximate cause
of death at page 221) and held that what occurred did not arise from a
fit. That approach does not sit happily
with Leyland Shipping and the modern
approach to causation.
[59] In
Reynolds, the deceased while bathing
in a very shallow pool suddenly became insensible for unexplained reasons, fell
over and drowned. In rejecting the
argument that the death was the result of the fit and so not an accident within
the meaning of the policy in question, the court held that the circumstances
amounted to an accident. No question of an exception to the policy arose for
consideration in that case. The report
is very brief and the judgments give no reasons for the conclusion.
[60] Here,
Mr Ward did not intend to fall into the water.
No one suggests that he intended to commit suicide. Whether he thought he was attempting to board
the Mizpah is unclear. What occurred at the quayside was obviously a
mistake on his part, an error of judgment or aberration. However reprehensible, anti-social or foolish
it may be to indulge in an evening's heavy drinking as described above, that
does not change the characterisation of what befell Mr Ward from tragic
accident to deliberate, or even reckless conduct.
Outward
violent and visible means
[61] Mr
Benyon referred to MacGillivray paragraph
25-21 to support the proposition that
death caused by drowning should be held to be accidental or a death caused by
violent accidental external and visible means.
I agree with the proposition and the text cited.
The
Policy Exception
[62] The
defender's submission was that Mr Ward's death was caused by or resulted from
intoxicating liquor taken by him. If so,
the policy exception quoted above applies and liability is elided. If one asks how Mr Ward died, the answer is simple. He drowned.
If one asks why he died, the
answer is more complex. Various facts
and circumstances must be examined and weighed in the balance. It is important to focus on the wording of
the policy. As quoted above the Exclusion Clause covers "accidental bodily injury caused by or
resulting from ...Intoxicating liquor ....taken by the Insured".
[63] It
was suggested by Mr Upton that resulting
from was wider than caused by
although he did not develop that submission or cite any authority to support
it. It may be that the latter phrase is
intended to cover injury which occurs some time as opposed to immediately after
the event in question. It is unnecessary
to explore this aspect further in the present case because of the short period
of between the state and condition of Mr Ward during the evening and the fall
and the death.
[64] Mr
Ward consumed a large quantity of intoxicating liquor in the hours leading up
to his death. He was unsteady on his
feet in the moments before death because of the quantity of alcohol he had
taken. His judgment must have been
impaired. His balance and other
faculties must have been impaired or disturbed.
He stood at the edge of quayside with his back to the water. It is most unlikely that a man whose judgment
had not been thus impaired would have done so.
Mr Ward stumbled, or slipped and fell into the water. Any man in full control of his faculties and
senses does not normally stumble, slip or fall in such circumstances. It must be presumed or inferred that in the
absence of other acceptable evidence, the cause of Mr Ward's fall into the
water which led to his death was the effect on him that night of the excessive
quantity of alcohol taken by him.
Presumptions or inferences arising from the evidence may, of course, be
rebutted. However, there is no evidence
in this case which rebuts the presumption or inference. As Dickson
observes (volume 1 paragraph 112
page 96) presumptions emerge daily in individual cases and are suggested by
ordinary experience. Here, there is no
other explanation offered for Mr Ward's behaviour in the last few minutes of
his life.
[65] While
the immediate cause of death was drowning, the event which is nearest in time
to the death is not necessarily the real, effective, proximate or predominant
cause. The net or web of causation must
be examined. The various events,
strands, forces and influences must be weighed. (Leyland
Shipping Company Ltd at page
369-370).
Here, the strongest strand which permeates the web of causation,
which has by far the greatest force and influence, is Mr Ward's state and
condition immediately before he fell into the harbour. That state and condition was brought about by
his consumption of intoxicating liquor.
The real cause of Mr Ward's death, the reason why he died, was, in my
opinion, his excessive consumption of alcohol.
The effect of the intoxicating liquor taken by him dominated and was the
reason for his behaviour in the course of the last minutes of his life. Put another way, the taking of intoxicating
liquor by Mr Ward set in motion a train of events which caused or resulted his
tragic death. I should add that I
consider the fact that Mr Ward had not learned to swim was a relatively neutral
factor given his state and condition.
Tom Robertson could swim, yet he had to be rescued.
[66] Unless
the policy exception is construed as applying only to alcoholic poisoning or
choking through the consumption of alcohol, the circumstances as I have found
them to be, fall within the policy exception or exclusion clause. I can find no reason so to interpret the
plain words of the relevant part of the exception clause. The exception applies and the claim must
therefore fail.
Interest
[67] Neither
party presented any detailed submission on interest. None of the authorities mentioned in the
written submissions of counsel was discussed either at all or in any
detail. The question of interest does
not arise in the light of my conclusions.
It would be unwise to say very much about the issue except to note that
the normal rule suggests that, in the absence of contractual provision
declaring otherwise, interest would be due from the date of citation but I note
that in Macleod interest was sought
from the date of the accident (at 1192E);
the question of interest was not, however, discussed.
Result
[68] Mrs
Ward's claim fails. I shall sustain the
second, third and fifth pleas-in-law for the defenders, repel the pursuer's
pleas-in-law and assoilzie the defenders.
[69] As
for expenses, on which counsel have previously addressed me at the hearing on
evidence, I certify Dr Grieve and Professor Forrest as skilled witnesses; there was no dispute about this. The first day of the proof had to be adjourned
in the circumstances described at the beginning of this Opinion. Both parties took the opportunity to fine
tune their pleadings. Late productions
were also lodged by each party with the consent of the other. I consider that no expenses should be found
due to or by either party in relation to the first day of the proof as both
parties took advantage of the time lost.
The pursuer is entitled to the expenses of the amendment procedure
relating to the Minute of Amendment for the defenders (No12 of process) and the
Answers (No 14 of process) as adjusted. Quoad
ultra, the defenders are entitled to the expenses of process save insofar
as already dealt with.
