Gray v Barr
Gray v Prudential Assurance Co Ltd
Court of Appeal
Citations:  2 QB 554;  2 WLR 1334;  2 All ER 949;  2 Lloyd’s Rep 1; (1971) 115 SJ 364;  CLY 6012.
The defendant’s wife had been having an affair with another man. The defendant, armed with a shotgun, went to the man’s farm to look for his wife. He entered the house and found the man standing at the top of the stairs. The man told him that the wife was not there. While this was true, the defendant did not believe him and demanded to explore the property to see for himself. When he got to the top of the stairs, he fired a ‘warning shot’ at the ceiling to scare the man off. This instead prompted the man to try to grapple with him. In the struggle, the defendant shot and killed the man by accident. A jury ultimately acquitted the defendant of both murder and manslaughter.
The man’s widow and father sued the defendant as the administrators of the man’s estate for negligence in causing the man’s death. His wife also sued as a dependant under the Fatal Accidents Act. The defendant claimed indemnity from an insurer under a policy which indemnified him against causing accidental injury. The insurer argued that his claim should barred as contrary to public policy.
- Was the man’s death an ‘accident’ within the meaning of the insurance contract?
- Where the defendant harms another in the course of an unlawful activity, is an indemnity claim barred by the public policy?
- What compensation was available against the defendant under the Fatal Accidents Act?
The Court of Appeal held in favour of the insurer. The man’s death was not an ‘accident’ within the meaning of the contract. The first warning shot, which was a deliberate action, was the dominant cause of the man’s death. Additionally, it would be contrary to public policy to allow the defendant’s indemnity claim to succeed.
Compensation was available to the man’s estate, though the correct action would be assault or battery, not negligence. The man’s dependants were entitled to compensation for their own pecuniary losses.
In the present case, the wife’s pecuniary losses were judged to be very little since the man was estranged from his wife and she had inherited considerably. However, under the modern version of the Fatal Accidents Act 1976, ‘benefits which have accrued or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded’ when assessing damages (s.4). A modern court would not be able to take into account the wife’s inheritance, therefore.
This Case is Authority For…
There is no ‘accident’ for the purposes of interpreting normal indemnity contracts where the dominant cause of the injury was deliberate, even if more proximate causes were accidental.
It is normally contrary to public policy to allow a defendant to recover an indemnity for the consequences of his own deliberate criminal actions. This is true even if the consequences were unintended.
Dependants suing under the Fatal Accidents Act are entitled to compensation for their own pecuniary losses. In calculating this, the court is entitled to consider any benefits the dependants have received as a result of the death, such as inheritances.
Lord Denning noted that ‘The idea of negligence – and contributory negligence – is quite foreign to men grappling in a struggle’.
Salmon LJ disagreed with the majority. He thought that the second shot was the ‘real’ cause of the man’s death. Since the defendant had no intention to shoot this second shot, it was an accident. He noted that in motor accident cases, there has been no suggestion that insurance companies are not obliged to pay just because the defendant was deliberately driving illegally (though he noted that they might be a special category). He also did not think that public policy was relevant. Rather, he thought that the court should simply apply the usual ‘officious bystander’ test for interpreting contracts.