Consider the following scenario:
On Saturday 18th April 2020 an event took place in the town of Twickly, England. The event was advertised as, and called ‘The Twickly Sports and Fun Day 2020’. The organiser of the event was Twickly Sports and Fun Day Limited (hereafter “TSFD”), a company formed by various people in the town with an interest in hosting a fundraising day for resident charities and local organisations. The event included a cricket tournament, running races, wellington boot throwing competitions, a tug-of-war and activity stalls, all situated around the Twickly Green field.
As part of their due diligence and risk management for the event, TSFD took out BISCO Event Insurance Policy with a (fictional) insurance company named BISCO Insurance plc (hereafter “BISCO”). The policy was dated 16th April 2020 and covered (on an indemnity basis) TSFD for various liability risks for a 24-hour period commencing at 6am on Saturday 18th April 2020. Copies of relevant extracts from the Proposal Form are produced below.
The event was, at first, a tremendous success, with many attendees, warm sunshine and well run sports competitions. The activity stalls around the cricket pitch were making good money for selected Twickly charities. Unfortunately, an incident occurred at approximately 2:30pm at one of the stalls called ‘June’s Gallery’. June’s Gallery stall was a shooting range, where punters would pay £1 for 3 shots on a pellet-rifle (a rifle powered by an air lock mechanism only – where small metal pellets are inserted into the tip) in an attempt to knock 5 tin cans off a shelf. Successful punters would win £5 if they did so.
At this time, a punter named Thomas was playing his turn at June’s Gallery. When he was about to fire his second shot, a loud noise was emitted from the event speakers, prior to an announcement being made. This noise startled Thomas, who involuntarily turned his shoulder as he fired the rifle. The discharging pellet hit the stall holder, June, in her mouth. June suffered fairly severe cuts and tissue damage to her lips and gums, and required extensive dental surgery from her injuries.
June instructed solicitors who wrote to TSFD on 24th April stating that June was seeking compensation for her injuries and associated damages. Whilst the amount sought was subject to future determination, the solicitors asked for an admission of liability from TSFD. TSFD’s directors consider that they are covered under their BISCO Event Insurance Policy for any claim brought against them by June, specifically under a section that states:
“Accident Cover
The INSURED is covered for up to £500,000 for accidental injury to THIRD PARTIES caused or occasioned on the COVERED PREMISES during the PERIOD OF COVER.”
BISCO do not dispute that this section of the policy would, ordinarily, cover June’s claim against TSFD. They accept that the likely compensatory amount sought by June would be within the sum insured (£500,000 or less), and was caused by accident (the involuntary discharging of the rifle) at the relevant premises (Twickly Green field) and at the relevant time (Saturday 18th April 2020). However, BISCO consider that they should not be liable for this indemnity cover because they were not aware that The Twickly Sports and Fun Day 2020 included a shooting gallery. They consider that TSFD should have made this clear on the Proposal Form prior to the policy being agreed. It is their position that had they been given this information, they would not have agreed to cover the event under their standard Event Insurance policy cover. Instead, they would have offered their Dangerous Event Insurance policy cover, for which a higher premium would have been required.
TASK:
BISCO have made arrangements to see your firm of solicitors for advice on the following question:
– In your reasoned opinion, what is the strength of BISCO’s position in rejecting a claim on the policy brought by TSFD on the basis of any breach of duty on TSFD’s part for:
o Failing to disclose the existence of a rifle shooting range?
o Misrepresenting the nature of the sporting activities or other activities at the event?