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