CR390 Pre-existing condition exclusion / causation


Pre-existing condition exclusion / causation

Exclusion clause – whether claim directly or indirectly attributable to pre-existing condition – test for legal causation

The exclusion clause in the policy read:

In the case of disability and severe illness benefits, [the insurer] will not pay a claim during the first twelve months of the life assured becoming a member if, in the opinion of [the insurer], the claim is directly or indirectly attributable to an injury or illness for which the member sought medical advice for or knew about (or could reasonably be expected to have known about) during the six months before joining the scheme.

The flow chart below details the sequence of events:


During six-month period prior to 1 April 2014: complainant sought medical advice for symptoms of gastro-esophageal reflux disease and hiatus hernia

   → joined scheme on 1 April 2014


9 June 2014: first operation – hiatus hernia repair with fundoplication


Complication of the first operation: fundoplication too tight


30 July 2014: second operation – second fundoplication to release the first fundoplication


Complication of the second operation: perforation leading to intra-abdominal sepsis


5 August 2014: third operation  – partial gastrectomy to correct perforation and to drain abdominal abscess

As per the timeline above, during the six months before joining the scheme, the complainant sought medical advice for a hiatus hernia and during the twelve months after joining the scheme, her claim based on septicaemia arose.

So the issue to be decided was whether or not the complainant’s claim based on septicaemia was directly or indirectly attributable to the pre-existing hiatus hernia.

There was little doubt that the requirements of factual causation had been met. The more difficult question was whether the requirements of legal causation had been met.

Legal causation requires cause and its consequence to be sufficiently or reasonably closely linked.

The phrase ‘directly or indirectly’ in this instance meant that the pre-existing hiatus hernia did not have to be the proximate cause of the septicaemia for the exclusion to apply.

However, it did not follow from this that any causal link at all would suffice. A line still had to be drawn somewhere. (In the English case of Arc Capital Partners Limited v Brit Syndicates Limited [2016] EWHC 141 the court gave the example of the birth of Captain Ewing, even though it may be said to have led in the chain of causation to his being in the position in which he was killed, could not be considered as causing his death).

Had the word ‘indirectly’ not been there, the line could conceivably have been drawn earlier, possibly after the first operation.

However, to give meaning to the word ‘indirectly’ the line had to be drawn further down the chain of causation.

But no matter how wide the ambit of the exclusion, legal causation requires the event in question to have genuine causative effect.

In this case the pre-existing hiatus hernia and septicaemia were separated by arguably five links in the causal chain, namely, (1) the first operation (to repair the hernia) leading to (2) a complication (the tight wrap) necessitating (3) the second operation (revision surgery to loosen the tight wrap) leading to (4) a further complication (perforation) resulting in (5) the complainant going into septic shock and requiring a third operation to repair the perforation and drain the intra-abdominal abscess.

So whilst the pre-existing hiatus hernia was undoubtedly the factual cause of the septicaemia, it was not sufficiently or reasonably closely linked to the septicaemia to be construed as the legal cause of it. 

Had the septicaemia occurred as a complication of the first operation, it may have been a different matter.  However the septicaemia occurred as a complication of the second operation and therefore the pre-existing hiatus hernia cannot be said to have genuinely formed part of the chain of causation. At best the pre-existing hiatus hernia constituted the context or background against which the claim event (septicaemia) eventually occurred.

It was decided in a provisional ruling that whilst the insurer had proven factual causation, it had failed to prove legal causation and could therefore not rely on the exclusion clause to repudiate the complainant’s claim.

The insurer accepted our provisional ruling and paid the claim.


August 2022