OMBUZZ

IN THIS ISSUE

When is death caused by an accident?

It can sometimes be problematic to decide whether the death of a life insured was due to an accident. This is an all-important issue where accident policies are concerned, or where a life policy has an additional accidental death benefit. The wording of the definition of ‘accident’ in the policy will sometimes be the determining factor as the following complaint demonstrates.

The facts

The life insured took out a policy with accidental death benefits amounting to R1 750 000 with an initial monthly premium of R191. The contract commenced on 1 July 2005. On 10 October 2005 she consulted a specialist surgeon with the request to undergo a gastric bypass procedure.

The 51 year old life insured qualified for obesity surgery because she weighed 114 kilograms and had a body mass index of 42. The surgeon explained to the life insured that in obesity surgery overweight patients are at risk of complications, including pulmonary embolism. After reading the list of possible complications presented to her, the life insured signed the declaration that she was ready to proceed with the operation. The operation was not covered by her medical aid and she had to pay for the operation.

On 26 October 2005 the life insured was admitted to a hospital and the procedure was completed with no complications at that stage.

On 28 October 2005 the life insured had a cardio respiratory arrest, which could not be reversed despite intensive resuscitation. The post mortem showed that the cause of death was a saddle pulmonary embolism.

The policy definition

The policy contained the following definition of an accident:

"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 complaint

The life insured's brother, who was also the executor of her estate, complained to this office after the insurer declined the claim under the policy. He included a copy of the medical report, the post-mortem examination report and the death certificate, which certified the death to be due to unnatural causes.

He contended that the death was caused by an external and unexpected event as the life insured’s death was caused by complications arising out of the operation; that had the operation not been carried out, the life insured would not have died; and hence that the death had occurred as a result of an external event, namely, the operation. He further argued that her death was not traceable either directly or indirectly to her mental or physical health before the event.

We responded to the complainant by pointing out that the policy definition of an accident required the following three elements:

an event that is

• external;
• unexpected: and
• not traceable to the insured’s state of health.

It can be readily accepted that the operation was an external event. It could also be presumed that the operation was not traceable to the insured’s state of health as the insured had undergone the operation for cosmetic reasons.

The vital question was, therefore, whether the operation could be regarded as an unexpected event. The death that resulted was admittedly not foreseen as a highly probable consequence of the operation (otherwise the operation would not have been done) but this did not mean that the operation itself, as required by the policy, was an unexpected event. Indeed, the insured deliberately underwent the operation. As matters stood, it was difficult to come to any other conclusion than that the death resulted from the operation which was not an unforeseen event although it gave rise to an unforeseen consequence.

It would also not have assisted the complainant to argue that the event was the pulmonary embolism because the question would then be whether the pulmonary embolism would comply with the elements laid down in the policy. It was not in the nature of an external event and, therefore, would not comply with the definition.

In the result we could, unfortunately, not regard the death as falling within the definition of "accident" as defined in this particular policy.

Discussion

Not all accident policies define the claim in this particular fashion. The complainant relied, in his complaint, on the decided case of Sikweyiya v Aegis 1995 (4) SA 143 (E) in which the definition of bodily injury was the following:

"Injury 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 facts were as follows:

The insured was warned that there were people waiting outside a shop who wanted to attack him. He disregarded the warning and went outside. He was 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 little doubt in this case that the insured’s death as a result of the attack on him answered the policy definition of "bodily injury".

The circumstances and the wording in the Sikweyiya case allowed the insured's death to fall within the ambit of the policy. We were of the opinion that as the Sikweyiya case is distinguishable it did not assist the complainant in the complaint we had to consider.

The policy wording made it clear that the cause of the death in our complaint had to be an unexpected event in that it provided that "an accident is an external unexpected event..." It did not state that an accident is at hand if an unexpected consequence results from an event – the event itself must be unexpected, i.e. unforeseen.

In English and American law, (see MacGillivray on Insurance Law [Tenth Edition] 25-18) if an insured dies while under an operation, the operation itself is disregarded and the death will be deemed to be attributable to the circumstances which made it necessary to have the operation. Therefore, if an insured dies as a result of an operation necessitated by a disease the accident policy will not pay out. However, if the operation follows on an accident and proper medical treatment is provided then the death would be regarded as caused by an accident. This approach would have resulted in the same answer in this particular case.

The above complaint demonstrates the difficulty of determining whether death is as a result of an accident where the death results from the life insured’s deliberate act, which had unintended consequences.