Posts in category: Accident

CR370
Accidental Death

Policy covered “accidental death”; was the deceased’s death accidental?

The policy covered ‘accidental death’ which was defined in the policy as a “traumatic death caused solely by external, violent, unforeseeable and visible means, occurring independent of any other causes and within 14 days of such trauma proved to the satisfaction of the insurer.”

Two weeks after giving birth, the deceased was re-admitted to hospital with internal bleeding. She was discharged five days later. Four days after that she was admitted to hospital again and subsequently died.

According to the autopsy report, the cause of death was ‘perforated peptic ulcer’ and ‘deep vein thrombosis with complications thereof’. The medical practitioner’s report submitted with the claim form indicated that the cause of death was ‘pulmonary embolism’ and ‘patient developed DVT post c/section’.

The abridged death certificate stated that the cause of death was ‘under investigation’.

The insurer repudiated the claim on the basis that the evidence did not show that the deceased’s death was an ‘accidental death’ as contemplated by the policy.

The complainant, the deceased’s mother, then lodged a complaint with our office contending that the death was not due to natural causes but due to the hospital’s negligence and that the insurer had therefore erred in repudiating the claim.

It was explained to the complainant that as the claimant she bore the onus to prove that the death was an ‘accidental death’ as defined.

We pointed out that the complainant’s own speculation or opinion as to the cause of death did not assist her and furthermore that it did not follow from the fact that the autopsy report revealed ‘sepsis’ as being the cause of death that there was negligence on the part of the hospital concerned or otherwise that the death constituted an ‘accidental death’.

The complainant had also failed to provide the basis for her contention that the deceased was ‘not correctly monitored in the correct manner’ and that this was the cause of death.

Therefore based on the available evidence, it could not be said that the death was caused by external or unforeseeable means. As such the complainant had failed to discharge the onus of proof and we were therefore unable to uphold her complaint.

LS
April 2016

CR371
Accident
Claim for accidental benefit due to bodily injury
Background:
1. The complainant had a laminectomy and fusion of vertebrae. The operation was deemed successful but in time she suffered chronic back pain and was declared permanently disabled for her own occupation by her employer. Some time after she had been boarded, she experienced severe pain in her back. X-rays revealed that some of the steel rods inserted in her back during the operation, about three years previously, had broken. She submitted a claim in terms of the Accidental Protection Plan held with the insurer, but it was declined on the basis that she did not fulfil the following definition of “accident”:

“Accident means a sudden and fortuitous event occasioned by visible, violent and external means.”

2. The insurer stated that the complainant had also failed to show that a “Bodily Injury” defined as follows had occurred as the breaking of the rods had occurred through a degenerative process:

“Bodily Injury means traumatic destruction of any part of the body, excluding mental or psychological impairment other that incurable insanity caused by Bodily Injury. Bodily Injury does not include sickness or disease or their consequences (except bacterial infections consequent upon Traumatic Bodily Injury), nor Bodily Injury due to a gradual operating cause or naturally occurring or degenerative process or to pregnancy or its consequences. Bodily Injury is deemed to include the direct results of exposure to the elements.”

3. The insurer was also of the view that the claim did not fall within the “Scope of Insurance” as the event had not occurred solely and independently as set out below:

“We will pay the Benefit shown in the Table of Benefits if during the Period of Insurance an Insured Person sustains Bodily Injury which results solely and independently of any other cause within 12 months of the date of Accident in Death or Permanent Disability.”

4. Apart from having to show that the claim fell within the definitions of “Accident” and “Bodily Injury” and within the “Scope of Insurance”, to qualify for the accident benefit the complainant also had to show that she was permanently and totally disabled as a result of the bodily injury, set out in the Table of Benefits.

Discussion:
5. The complainant argued that the breaking of the rods was sudden, unexpected, visible on the x-rays, forceful and caused by external means and
not through a degenerative process or a natural wear and tear process. She was of the view that the surgery was not the cause of the breakage. She obtained a medical opinion which stated that the operation had been extremely successful; that the type of steel rods inserted do not erode or degenerate through a natural process and that such breakage was an event which was unrelated to and independent from the operation. An orthopaedic specialist stated that the cause of the breakage of these rods may be ascribed to the fusion not solidifying, and that this occurred in about 5 % of cases. His conclusion was also that the breakage was an independent incident from her original pathology.
6. The insurer persisted that if the complainant had not undergone the fusion operation to her back, she would not have had the rods inserted and therefore the breakage of these rods was not an independent incident, but directly related to the surgery which had proven not to be successful after a number of years.
Result:
7. After due consideration of the matter, this office found in favour of the insurer as the complainant had not met the criteria of the definition of “Accident”. She was unable to state when exactly the requisite sudden fortuitous event had occurred and although the breakage may have been a violent event and visible on x-rays the definition requirement of “external” would also have been problematic for her to prove because the forces were all generated within the body.
8. It appeared that the pain in her back gradually escalated and therefore she had also failed to show that the event occurred within the period stipulated at “Scope of Insurance”. The definition of “Bodily Injury” does not include a degenerative process and more weight was given to medical evidence that the breakage of the rods was not an uncommon occurence after a fusion operation. Medical opinion submitted indicated that the breakage was caused by the non-adherence of the fusion and the instability of the spinal structures, placing abnormal stress on the screws and rods.
9. Apart from having regard to the specific definitions, the office also considered if the event occurred solely and independently from any other cause. This is usually understood to transpire when the chain of causation is operative until there is an intervening cause. Had she not had the fusion operation whereby rods were inserted in her back, there would not have been breakage of the rods, which caused her excessive pain and consequent inability to work and the reason she applied for the benefit. From this it follows that the breakage was not an intervening cause, but was dependent on the fusion operation some years previously.
10. The complainant sought leave to appeal the office’s final determination in favour of the insurer, which was granted to her. The appeal was dismissed, the appeal tribunal stating:

“My finding that the breaking of the rods was not an ‘accident’ or a ‘bodily injury’ as defined in the policy is decisive of the appeal. It renders unnecessary any discussion of other contentious matters raised at earlier stages such as causative importance of the operation, whether the breaking of the rods as distinct from the underlying pathology resulted in the state of total disability, and whether ‘solely and independently of any other cause’ can and should be interpreted against the insurer as was found to be so in relation to the policy considered in *Concord Insurance Co Ltd v Oelofsen NO 1992 (4) SA 669(A).”
(*In this case it was decided by the court that the words, “independent of any other cause” do not refer to a pre-existing condition that had merely contributed to the permanent disability and thus excluded the insured’s pre-existing health condition.)
NvC
April 2016

CR376

Probabilities of Accidental Death for payment of Accidental Death Benefit

Accidental Death Benefit – insurer accepting death as accidental on probabilities – requiring actual proof that accidental to pay benefit

Background

1. The policy was a funeral policy which provided a funeral benefit of R5000 with an additional R5000 if the death was accidental.

2. The policy commenced on 1 July 2014.

3. The deceased passed away on 25 July 2014.

4. The death certificate noted the cause of death as “Under Investigation”

5. The preliminary post-mortem report noted “AWAITING RESULTS”. The results required, were the toxicology results.

6. The insurer obtained a report from a medical consultant who suggested that the cause of death was natural. He stated:

“Found dead in bed together with partner who woke up fine…Suggest: Natural causes…myocardial infarction…”

7. Based on this report the insurer declined the claim as the death was within the 6 month waiting period for death due to natural causes.

8. As the complainant had stated in the original complaint: “…the following day the two women, the other one my aunt both were found dead”, the office directed further enquiries to the investigating police officer.

9. The investigating officer confirmed that the photographs on the case file recorded the following: two women were found on the floor; both were deceased; one had signs of vomit from her mouth; the other did not; bowls next to the bodies showing what the deceased persons had eaten the night before.

Discussion:

10. We wrote to the insurer and stated that whilst it was possible that both of the deceased persons could have died as a result of natural causes on their own, given the circumstances under which the bodies were discovered, it was not probable that both people had passed away at the same place at the same time due to natural causes. On a balance of probabilities, it was more likely that the deaths were unnatural / accidental.

11. The insurer agreed to pay the funeral benefit as it accepted our view that the death, on a balance of probabilities, was accidental. It, however, wanted actual proof that the death was accidental before it would pay the accidental death benefit.

12. The insurer was advised that accepting, on a balance of probabilities, that the cause of death was accidental for payment of the funeral benefit was sufficient for payment of the accidental death benefit and that actual proof was not required.

Result:

13. The insurer paid the accidental death benefit.

GB
October 2017

CR322

Exclusion clause – inserted in definition of an “accident” only – could it be interpreted to apply as a general exclusion as well?

Background

Ms F held policies that provided her with cover for hospitalization resulting from illness or accident. An accident was defined in the policy, the relevant portion stipulating that –

“Accident means a sudden, uncertain and unexpected event …, and excludes the following:
• …
• …
• hospitalisation for treatment or control of chronic or acute pain (resulting from an illness or injury) will be limited to a maximum of 3 (three) days per event …”

An “illness” was also defined, but neither therein nor in the policy’s general exclusion clause, which listed a number of other exclusions, was any similar exclusion clause contained.

In March 2011 Ms F was hospitalised for 10 days due to gastritis, bronchitis and costochondritis, and submitted a claim to the insurer. The insurer denied liability for more than 3 days’ cover, in doing so relying on the exclusion clause referred to in the definition of “accident” above.

We pointed out to the insurer that the exclusion clause appeared to be only applicable to hospitalisation as a result of an accident, because if it was applicable to all hospitalisation it would presumably have been placed in the section of the policy that listed the general exclusions.

The insurer’s contention in response was that, because the exclusion clause in the definition of “accident” also made reference to illness, it was clear enough that it applied to hospitalization due to both illness and an accident.

Discussion

At an adjudicators’ meeting the unanimous view was that, because of the location of the exclusion clause in the contract, the ordinary reader would understand that it only had application to hospitalisation as a result of an accident. While the exclusion also embraced an “illness”, an illness, such as for example a serious infection, could result from an accident. On this basis the meeting concluded that the claim should be reassessed and payment for the additional days spent in hospital should be considered.

Result

The insurer accepted the office’s view and the claim for the entire period of hospitalization was settled by the insurer.

HE
January 2012

CR170

Accident – whether an operation for cosmetic reasons resulting in death qualified as an accident as defined in the policy – causation

Background

The insured took out a policy offering cover against accidental death. Although warned that a gastric bypass operation was a high risk operation, the insured underwent it in order to control her weight problem. Following the operation she died from a post-operative pulmonary embolism.

The policy definition of the term ‘accident’ was as follows:

“An accident is an external, unexpected event that is not traceable, even indirectly, to the Life Covered’s state of mental or physical health before the event.”

The insured’s executor brought a claim against the insurer but the latter rejected it on the grounds that the death did not result from an accident as defined. The executor then turned to us for assistance.

Discussion

To bring the claim within the four corners of the promise made, the complainant had to prove that the death resulted from an accident as defined. Considering the definition of ‘accident’ the complainant primarily had to prove that the death resulted from an ‘event.’ At first the complainant contended that the relevant event was the operation. For the operation to meet the description of an accident, it had to be:

(a) an external event;
(b) an unexpected event;
(c) an event not traceable to the insured’s state of health.

We assumed that the operation was an ‘external event.’ At the insistence of the complainant, we also assumed, for purposes of argument, that the operation was not traceable to the insured’s state of health but was done for cosmetic reasons. This left us with the question whether the operation could qualify as an unexpected event.

In support of his contention that the operation was an accident in terms of the policy, the complainant referred us to the case of Sikweyiya v Aegis 1995 4 SA 143 (E). In the course of its judgment the Court made the following remark:

“[It] follows that if a deliberate act on his [the insured’s] part causes an injury which is an unexpected and unforeseeable result of his action, that injury is caused accidentally.”

In Sikweyiya the policy provided cover against death as a result of bodily injury. ‘Bodily injury’ was defined as follows:

“[I]njury which is caused by accidental violent external and visible means and which within 24 months from the date of the accident shall solely and independently of any other cause result in the person’s death…”

The insured life was warned that there were people waiting outside the store who wanted to attack him. He disregarded the warning and walked out only to be attacked and killed with a garden fork. The court decided that the unexpected and unintended [by the insured] attack with a garden fork causing fatal injuries constituted the accidental means as envisaged in the policy.

There can be no doubt that in Sikweyiya the insured’s death as a result of the attack on him answered the policy definition of bodily injury. It was an event that was not foreseen by the insured.

It goes without saying that a deliberate act resulting in unforeseen injury will generally and in principle be seen as an accident, for example where an insured lifts a heavy weight and injures his spine. However, it all depends on the wording of the policy. The wording in Sikweyiya was wide enough to cover such a situation. In the present case, on the other hand, the policy stated in so many words that the cause of the death must be an unexpected event. The death that resulted was admittedly not foreseen as a probable consequence of the operation (otherwise the operation would not have been done) but this did not mean that the operation itself was an unexpected event. The insured after all deliberately underwent the operation. We therefore took the view that if the operation had to be taken as the event causing the death, the death did not result from an accident as defined in the policy.

The complainant’s next bite at the cherry was that it was not the operation which was the unexpected event but that it was “… the consequence of the operation which was the unexpected event, pulmonary embolism.” If the pulmonary embolism had to be seen as the relevant causal event, the question arose whether it complied with the other requirements laid down in the policy. It was admittedly an unexpected occurrence, but was it in the nature of an ‘external’ event? On the face of it, that was not so.

Result

Having considered all the arguments we made a provisional ruling that on the facts presented to us the death did not result from an accident as defined in the policy. The complainant failed to react to our provisional ruling with the result that it became final.

MFBR
November 2006

CR82

Accidental death benefit declined – deceased’s concentration of alcohol in blood excessive – no causal link between concentration of alcohol and deceased’s accidental death.

Background

The deceased had an endowment policy which provided for payment of a benefit to the nominated beneficiary in the event of the insured passing away due to unnatural causes.

The insured was killed in a motor car accident due to a collision between the motor vehicle that she was driving and one driven by Mr M.

According to the post-mortem examination the concentration of alcohol in the specimen of blood taken from the insured was 0.06 grams per 100ml. A claim for the accidental death benefit was declined on the basis of an exclusion clause in the policy which provided that; “No payment shall be made under this policy on the death of the life assured resulting directly or indirectly from … (the insured) being under the influence of alcohol …”

The other driver, Mr M, was subsequently prosecuted and a regional court determined that the accident which resulted in the death of the insured was caused by him. The insurer, however, persisted in its reliance on the exclusion clause, maintaining that the blood alcohol analysis confirmed that the insured was over the legal alcohol limit of 0.05 grams per 100ml. The complainant, as executor in the estate of the insured, approached our office for assistance.

Discussion

We pointed out to the insurer that the wording of the policy exclusion did not refer to an alcohol limit over the legal limit of 0.05 grams per 100ml. The wording was simply that; “no payment shall be made under this policy on the death of the life assured resulting directly or indirectly from (the insured) … being under the influence of alcohol …” Being under the influence of alcohol and having a blood concentration of alcohol of 0.06 grams per 100ml were not necessarily the same thing.

Furthermore, and more importantly, the insurer had also not shown that there was a casual link, whether direct or indirect, between the life assured being under the influence of alcohol and the death of the life assured.

Result

The insurer requested a copy of the court finding, and on receipt thereof, admitted the claim and paid the benefit with interest from the date of first repudiation of the claim.

SM
October 2005

CR83

Death claim – accidental death policy – whether the deceased negligently or intentionally exposed himself to danger; whether the death directly or indirectly arose from or could be traced to an action of the insured while his blood alcohol percentage was over the prescribed limit.

Background

The complainant was the wife of the deceased life insured. Her husband, a police officer, died after a shooting incident in 1996. She was paid out on a life policy but the insurer repudiated the claim on an accidental death policy.

The circumstances of the insured’s death were murky. On the date in question, in the middle of the night, a suburban resident, Mr S, heard noises outside his house and on investigation he found the insured on top of his perimeter wall. S thought he was an intruder, and pointed a firearm at him, telling him not to move. The insured moved his arm and S shot him three times, killing him. How the insured came to be on the wall is clothed in mystery and intrigue. There were allegations of police involvement in criminal activities about which the insured was likely to testify as a state witness, the involvement of notorious former security policemen, and the suggestion that the insured’s crooked colleagues may have forced him to get drunk/drugged and put him up to being on the wall where he was likely to get shot, thus doing them a favour. Some of these allegations were put to the insurer by one of the investigating officers. Eight years after the death, the finding of the inquest report was that the death was brought about by an act or omission of S prima facie amounting to an offence. The transcript of the inquest however shed no light on how the insured came to be on the wall, and it did not appear that any more relevant evidence would come out of S’s trial.

The benefit was payable if the insured died as the result of an accident – “as gevolg van ‘n ongeluk”. This phrase was defined in the policy to mean that (a) the death was the direct result of bodily injury caused by physical contact with violent, accidental, tangible, external means and (b) that

“hierdie dood of liggaamlike verlies op geen wyse daaraan toe te skrywe is dat die versekerde homself of haarself nalatig of opsetlik aan gevaar blootgestel het nie tensy in ‘n poging om ‘n menselewe te red, in belang van die reg of tydens die beskerming van eiendom.” (our emphasis)

There was also an exclusion in the policy to the effect that no benefit was payable

“waar die dood of liggaamlike verlies direk of indirek voortspruit uit, of nagespeur kan word tot enige van die volgende:
…
– ‘n handeling van die versekerde terwyl hy/sy onder die invloed van dwelmmiddels of alkoholiese drank is, of terwyl die alkoholinhoud van sy/haar bloed 0.16 gram of meer per 100 ml is”.

Discussion

The insurer repudiated the claim on the basis that the insured negligently exposed himself to danger by being on the wall, and that his blood alcohol count at the time of death was 0.43 g/100 ml, which in their view meant that his death could be traced to his action (being on the wall) while his blood alcohol exceeded the limit.

The complainant’s attorneys argued that the inquest report made no finding that the deceased had negligently or intentionally exposed himself to danger; the finding was that S was responsible. Furthermore, notwithstanding the insured’s blood alcohol level, there was no indication that the death could be traced to an action of the insured while “over the limit”; they maintained that the insurer seemed to accept that if his blood alcohol was over the limit his death could automatically be traced to his action.

Result

We noted that this was a classic situation where the probabilities were in balance, there were weaknesses on both sides, and it was extremely difficult to make a finding on the facts. We proposed that the parties split the amount at stake, and that the insurer pay a benefit of 50%. The parties agreed to this. The complainant’s attorney thanked the office for assisting in the resolution of a struggle that had lasted years, “like Solomon of old”!

SM
October 2005