INSURANCE: Accident insurance - Personal accident insurance policy - Insured died of heart attack after he had a fall - Whether beneficiary could claim for payment under policy - Whether death by heart attack caused by heart disease and not covered by policy - Whether evidence showed that fall and not heart disease led to heart attack

AMANAH RAYA BHD v. JERNEH INSURANCE BHD
COURT OF APPEAL, PUTRAJAYA
ABDUL MALEK AHMAD PCA ,RICHARD MALANJUM JCA, AUGUSTINE PAUL JCA
[CIVIL APPEAL NO: W04-10-2000]
8 FEBRUARY 2005

JUDGMENT

Augustine Paul JCA:

In this case the plaintiff (the appellant before us) brought an action against the defendant (the respondent before us) in the Sessions Court for the sum of RM122,000 with interest and costs arising from a personal accident insurance policy ("the policy"). The policy had been issued by the respondent to one Devia Nathan s/o Savarimuthu ("the deceased") of whom the appellant is the legal representative. The policy guaranteed payment in the event of injury or death of the deceased arising from an accident except in cases where the exclusion clause applied. It was an agreed fact that the deceased died after attempting to put out a fire in his neighbour’s house. The evidence showed that the cause of death was a heart attack suffered by the deceased. Upon a claim having been made under the policy by the beneficiary of the deceased the respondent repudiated the claim on the ground that the death was not caused by an accident.

The learned Sessions Court Judge was of the view that the exclusion clause did not apply in this case and thus allowed the appellant’s claim. As he said in his judgment:

The respondent appealed to the High Court. The learned High Court Judge ("the learned judge"), having said that the central issue in the appeal was whether the deceased’s death was caused by an accident or resulted from a disease, then went on to say in his judgment:

In ruling that the death of the deceased came within the exclusion clause in the policy, the learned judge said:

Accordingly, the learned judge allowed the appeal with costs.

What perhaps requires to be addressed first is the true nature and scope of the exclusion clause in the policy. Its proper meaning will play a determinative role in ascertaining the liability of the respondent. In considering its meaning, the learned judge said:

Learned counsel for the appellant said that as the respondent had failed to define the scope of the exclusion clause, any ambiguity arising should be construed against them in accordance with the contra proferentum rule. He submitted that the exclusion clause does not apply in this case as the death was caused by a violent and severe heart attack which happened suddenly, unexpectedly and in an extreme situation while the deceased was trying to put out the fire. Learned counsel for the respondent said that it is clear from the exclusion clause that death caused by disease/infection was not covered by the policy and added that it is also clear from the said exclusion clause that an accident which arose from disease/infection was also not covered by the said PA policy.

The exclusion clause reads as follows:

It may be useful to bear in mind the rules of construction of insurance policies before determining the meaning of the exclusion clause. As Fisher, J said in Jason v. Batten (1930) Ltd; Jason v. British Traders’ Insurance Company, Ltd [1969] 1 QB 281 at p 290:

It will be observed that the exclusion clause first sets out a list of instances in respect of which the coverage will not be effective. It then goes on to explain its meaning in two sentences. Even though the first sentence suggests that coverage is excluded for death due to injury resulting directly or indirectly from disease, its scope is circumscribed by the second sentence which states that what is not covered are "… accidents arising from the above-mentioned list …". What this means is that the exclusion clause would only apply where the death or injury was caused directly or indirectly by an accident which arose from one of the instances set out in the list. In other words it is, inter alia, the disease that must have caused the accident. Where, therefore, a person with a weak heart has a fall which triggers a heart attack it must be established that it is the person’s heart condition that caused the fall. The exclusion clause will not apply if the fall was due to an accident. This is the special meaning given to the exclusion clause in the policy itself and it must therefore prevail. It is quite differently worded compared to such clauses in similar insurance policies which exclude liability in respect of death or injury caused directly or indirectly by any disease when there is an accident. Such an articulately worded exclusion clause can be found in the insurance policy which arose for consideration in Jason v. Batten, supra. It reads as follows:

An exclusion clause worded in such a way will make it clear that the death or disablement which arose from an accident was caused by a disease which existed prior to the accident. Where such an exclusion clause applies the accident must be independent of the physical defect or infirmity and must be the sole cause of the injury or death. The liability of an insurer in such cases is as described in Penn v. Standard Life Insurance Company [1912] 76 SE 262 which was approved in Jason v. Batten, supra, at p 291:

However, in this case, the test as just stated is not applicable as the exclusion clause excludes liability only for accidents arising from, inter alia, disease.

Be that as it may, even without the exclusion clause, a claim can be successfully made in this case only if the death or permanent disablement is the direct result of an accident as stated in the Personal Accident Insurance Plan at p. 124 of the Appeal Record. It reads as follows:

It must be noted that this provision does not cover a situation where the injury or death is the indirect result of an accident. Thus the initial burden is on the appellant to show that the death of the deceased was the direct result of an accident. There will be no liability if the death was not the direct result of an accident. If the exclusion clause is applicable it will be an exception to the general liability of the respondent and the onus of proving that a claim is within the exception will be on them (see Motor Union Insurance Co Ltd v. Boggan [1923] 130 LT 588; Smith v. Accident Insurance Co [1870] LR 5 Exch 302; McSteen v. McCarthy [1952] NI 33). This is consistent with s. 103 of the Evidence Act 1950. What therefore requires consideration in this case is whether the death of the deceased was the direct result of the accident and, if so, whether the liability of the respondent is excluded by the operation of the exclusion clause pursuant to which it must be shown that it was the accident which arose from the disease.

The case for the appellant rested on the oral evidence of Dr Pailoor Jayalakshmi (PW1), the pathologist who conducted the post-mortem on the deceased; some agreed documents and an agreed fact while the respondent called Geng Mum Har (DW1), one of their Assistant Managers. As stated earlier, the agreed fact is that the deceased died after attempting to put out a fire in his neighbour’s house. In her examination-in-chief PW1 said:

She then said that the deceased had abrasions on the face, shoulder and body. It was her opinion that these injuries suggest that he had a fall and that they are consistent with him having fallen down. Having said that the cause of death is myocardial infarction she added:

In her cross-examination, PW1 said that she had no personal knowledge as to how the accident happened and that she obtained the information from the police. In answer to further questions, she said:

In her re-examination, she said:

The learned judge had ruled that there was no evidence to show that the deceased had fallen down in view of the inadmissibility of the evidence that he had fallen while carrying buckets of water. He went on to rule that the abrasions on the deceased’s body did not cause his death and that the proximate cause of death was the disease. Even if the reason why the deceased fell is inadmissible, it is an error to say that there is no evidence to show that he had fallen down. PW1 clearly said that the injuries on the body of the deceased suggest that he had a fall. In the absence of a challenge of this evidence of PW1 by the respondent, it must be accepted that the deceased had a fall. However, the cause of the fall is essential to establish the liability of the respondent. The ruling made by the learned judge on the admissibility of the evidence that the deceased had fallen while carrying buckets of water must be reviewed against the background of cases such as R v. Bradshaw [1985] 82 Cr App R 79, Ramsay v. Watson [1961] 108 CLR 642, Leis v. Gardner [1965] Qd R 181, Leonard v. British Columbia Hydro and Power Authority [1965] 49 DLR (2d) 422 and Van Vliet v. Griffiths [1978] 19 SASR 195 where it was held that a doctor may not state what a patient told him about past symptoms as evidence of the existence of those symptoms, because that would infringe the rule against hearsay, but he may give evidence of what the patient told him in order to explain the grounds on which he came to a conclusion with regard to the patient’s condition. There can be no objection to such evidence coming from another source where the patient is very ill as in this case where the deceased had collapsed. The evidence ruled as inadmissible by the learned judge is necessary to explain PW1’s opinion that the deceased had a fall. On the authorities referred to, the evidence is therefore admissible. Thus, there is evidence to show that the deceased had a fall while carrying the buckets of water. This shows that the cause of the deceased’s fall is an accident. However, the cause of his death is a heart attack and he has had a previous attack. This raises the question of whether the respondent is liable when there is an accident though the subsequent death is caused by a heart attack. Leyland Shipping Co Ltd v. Norwich Union Fire Insurance Society Ltd [1918] AC 350 supports the proposition that even where there is an exception relating to disease, it is inapplicable where the death or disablement, though ultimately due to disease, is nevertheless proximately caused by accident, the disease being a mere link in the chain initiated dominantly and effectively by the accident. Thus, where a fall causes hernia or pneumonia, from which the assured dies, his death is caused by accident, and an express exception against hernia or pneumonia has no application (see Fitton v. Accidental Death Insurance Co [1864] 17 CBNS 122; In the Matter of an Arbitration between the Etherington and the Lancashire and Yorkshire Accident Insurance Co [1909] 1 KB 591). Even where a fall brings out tuberculosis which was latent in the assured’s system, but which would not have manifested itself but for the fall, the disablement is proximately caused by the fall, and is not within an exception against disease (see Fidelity and Casualty Co of New York v. Mitchell [1917] AC 592). In the case of In re An Arbitration between Kate Scarr and The General Accident Assurance Corporation, Limited [1905] 1 KB 387 the assured’s heart was in a weak and unhealthy condition. As a result of physical exertion, he died of heart failure. The claim against the insurance company failed because the injury which resulted in the death of the assured was not caused by accidental means. As Bray, J said in his judgment at p. 393:

Clearly, the claim would have succeeded if the injury had been caused by an accident. The evidence of PW1 that the fall could have triggered the heart attack was not challenged. In the absence of any suggestion to the contrary by the respondent of this piece of evidence, it can be safely accepted that if not for the fall the deceased would not have had the heart attack. It is therefore the fall that resulted in the death of the deceased. The heart attack suffered by the deceased is a mere link in the chain initiated dominantly and effectively by the fall. The accident is therefore the proximate cause of his death. It follows that the respondent must indemnify the estate of the deceased in accordance with the terms of the policy subject, of course, to it being negated by the exclusion clause. As stated earlier, the exclusion clause excludes coverage only for accidents arising directly or indirectly from, inter alia, disease. The respondent ought to have led evidence to show that it was the heart condition of the deceased that led to the fall and, consequently, the heart attack. If there had been such evidence, the disease would have been the indirect cause of the death thereby coming within the terms of the exclusion clause. As this burden has not been discharged, the exclusion clause is inapplicable.

In the upshot, we were of the unanimous view that the appeal must be allowed with costs. Accordingly, we set aside the order of the High Court and confirmed the order made by the Sessions Court.

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