Words and their meaning really do matter - Rachel Henry

Rachel Henry, Partner and Head of Catastrophic Injury at BLM in Scotland

Words matter. The meaning of words and the way they are interpreted matter. Wording used in insurance contracts can be crucial to the outcome of legal cases, as we saw on 8 February 2021 when the United Kingdom Supreme Court (UKSC) heard a Scottish case about a pre-pandemic incident in Aberdeen.

The factual background to the case is tragic. A 26-year-old man died following an altercation with door stewards outside a pub. After hearing a criminal trial, a jury which had heard conflicting evidence on the cause of death acquitted one of the door stewards of murder but convicted him of assault “by grabbing (the 26-year -old) by the neck, forcing him to the ground and placing him in a neck or choke hold.” The trial judge accepted that what the door steward did “was badly executed, not badly motivated”.

Separate from the criminal case, the deceased’s widow brought a civil case, seeking damages for the loss of her husband. The latest court hearing in this civil case took place remotely by video-conference before UKSC last Monday. The questions of law for UKSC to resolve are on the public liability insurance policy between the pub and their insurers. The words of the policy include that the insurer is not liable to pay if the pub’s liability arises out of “deliberate acts, wilful default or neglect” by the pub’s employees. Separate words in the policy provide that if the pub’s liability arises out of “wrongful arrest” then the insurer’s liability is restricted to £100,000.