Australia: Is thrombosis an "accident" under a personal accident policy?

Curwoods Case Note
Last Updated: 3 May 2011
Article by Olivia Dinkha

Judgment date: 13 April 2011. Pass v Gerling Australia Insurance Company Pty Ltd [2011] WASCA 93. Western Australian Court of Appeal1

In Brief

  • A policy of insurance must be interpreted according to its natural and ordinary meaning.
  • The usual consequence of a progressive illness is not an "accident" within the meaning of a personal accident insurance policy.

Background

On 17 April 2000, Adam Pass collapsed at Changi Airport in Singapore. He was taken to a nearby hospital but died shortly after. The autopsy report and death certificate noted that the cause of death was thrombosis of the left anterior descending coronary artery.

At the time of his death Mr Pass had severe coronary atherosclerosis, a condition that had existed for many years. Over time, small blood vessels had infiltrated atherosclerotic plaque in Mr Pass's arteries. For reasons which could not be determined, these blood vessels ruptured and haemorrhaged. A thrombus in the left anterior descending coronary artery caused the vessel to block and resulted in a fatal myocardial infarction.

Earlier, on 22 and 27 February 2000, Mr Pass presented to the emergency department of Royal Perth Hospital complaining of chest pain. On each occasion an ECG was performed which was normal and Mr Pass was discharged. At the trial, expert evidence for both parties considered that Mr Pass had in fact suffered a myocardial infarction in February 2000, even though the condition was not diagnosed.

Mr Pass was insured under a Group Personal Accident and Corporate Travel Plan (Policy) underwritten by Gerling Australia Insurance Company Pty Ltd (Gerling). Mr Pass was entitled to "personal accident" cover under the Policy, which included a $250,000 death benefit.

The personal accident section of the Policy provided the following cover:

"If an Insured Person suffers an Injury whilst engaged on Insured Travel during the Period of Insurance and as a direct result and within twelve (12) months of the date of the Injury suffers from any of the Insured Events set out in the Table of Benefits, We will pay the Compensation stated in that Table."

The Policy contained the following definition of "injury":

"INJURY means bodily Injury resulting from an accident that occurs fortuitously to the Insured Person during the Period of Insurance and results in any of the Insured Events specified in the Table of Benefits within twelve (12) calendar months from the date thereof. Injury does not include:

a. any consequences of an Injury which are ordinarily described as being a disease;

b. an aggravation of a pre-existing injury unless caused by a separate and distinct accident."

As the executor of his estate, Mr Pass's widow, Mrs Pass, claimed payment of the $250,000 death benefit. Gerling rejected the claim and Mrs Pass brought proceedings against it in the District Court of Western Australia.

District Court Decision

There was no dispute that at the time of his death Mr Pass was an insured person engaged on insured travel; that his death occurred within 12 months of the date of the injury; and that if he suffered an injury, his death was a direct result of that injury. The primary question before the Court was whether Mr Pass's death was an injury as defined in the Policy.

Martino DCJ was satisfied that the death of Mr Pass's heart tissue which resulted from the thrombus was a bodily injury, which in normal usage means harm or damage done to part of the body. However, to satisfy the definition of injury contained in the Policy, the bodily injury must have resulted from an accident. His Honour considered that an accident is an unexpected and unintended mishap, which does not have to be external to the body, violent or visible. His Honour further considered that to result from an accident the bodily injury must have been caused by an accident. Thus, if the rupture of the blood vessels was an accident, the subsequent death of Mr Pass's heart tissue would be an injury resulting from an accident and would satisfy the definition of injury in the Policy.

Martino DCJ found that although the rupture of the fine blood vessels in the atherosclerotic plaque in Mr Pass's coronary artery was unexpected and unintended, as a matter of ordinary language it could not be described as an accident. Although what occurred was certainly an injury, referring to the High Court's decision in Australian Casualty Co Ltd v Federico2 his Honour held that for an injury to be caused by an accident there must be an accident which causes the injury, it is not enough that the injury may be described as accidental. Accordingly his Honour found in favour of Gerling.

In the event that Mr Pass's injury was an accident, his Honour considered that the two exclusions to the definition of injury set out above would not apply. His Honour interpreted exclusion (a) to apply to the consequences of an injury which a reasonable, ordinary member of the public would regard as being a disease. His Honour held that the formation of the thrombus, the blocking of the artery by the thrombus and the myocardial infarction would not ordinarily be described as being a disease and that therefore exclusion (a) would not apply in the event that Mr Pass suffered an injury as defined in the Policy.

His Honour interpreted exclusion (b) to render the aggravation of a pre-existing injury not an injury within the meaning of the Policy, unless that aggravation was caused by a separate and distinct unexpected and unintended mishap. His Honour noted that while Mr Pass suffered a myocardial infarction in February 2000, the formation of the thrombus and the blocking of the artery by the thrombus which led to the myocardial infarction on 17 April 2000 was not an aggravation of a pre-existing injury. Therefore, the second exclusion to the definition of injury would not apply in the event that Mr Pass's injury was an accident.

Court of Appeal Decision

Mrs Pass appealed, alleging that the trial judge erred in not finding that the rupture of the blood vessels was an accident.

By Notice of Contention, Gerling submitted that Mr Pass's death was a personal injury that resulted from the natural progression of his underlying heart disease and that no reasonable non-expert would describe what occurred as an accident. Gerling further submitted that in the event that Mr Pass's injury was an accident, his Honour should have found that the two exclusions applied because the consequence of the injury, namely the myocardial infarction, was a consequence which would ordinarily be described as a disease. Further, the injury was an aggravation of Mr Pass's pre-existing atherosclerotic disease.

The Court of Appeal noted that the facts of the case were very similar to the facts in Commonwealth v Hornsby3. In Commonwealth v Hornsby Mr Hornsby collapsed while on his way to work after suffering a stroke resulting from a thrombosis in a blood vessel in his brain. The blood vessels in his brain had been affected by atheroma for "some time" prior to his collapse. The question before the High Court was whether what occurred was an "injury by accident" within the meaning of s 9A(1) of the Commonwealth Employees' Compensation Act 1930-1956 (Cth) (the Act).

A majority of the High Court in Commonwealth v Hornsby held that the thrombosis was not an "injury by accident" as it was the culmination of a gradual development of a disease. Windeyer J held:

"[A]n injury or incapacity that is an ordinary result of the progress of a disease according to its ordinary course is not, I think, an accident. A usual consequence or the normal climax of a progressive malady does not become an accident because it manifests itself suddenly and, to the patient, unexpectedly."

Mrs Pass attempted to distinguish Commonwealth v Hornsby by submitting that Mr Hornsby's thrombus was an inevitable progression of his condition, while the development of the thrombus in her husband was not inevitable. The Court of Appeal noted that there was no clear statement in the facts of Commonwealth v Hornsby that the development of the thrombus which afflicted Mr Hornsby was inevitable. In any event, the Court of Appeal held that the issue of whether the development of the thrombus was common or inevitable was irrelevant as in either case it was the product of the underlying disease.

Mrs Pass also argued that Commonwealth v Hornsby was distinguishable because the relevant terms of the Policy ("bodily injury resulting from an accident") were different to the terms of s 9A(1) ("injury by accident"). While not bound by the High Court's decision in Commonwealth v Hornsby, the Court of Appeal held that the case provided some assistance in determining the ordinary meaning of "bodily injury resulting from an accident" as contained in the Policy.

The Court of Appeal upheld the decision of Martino DCJ by holding that as a matter of ordinary language, the rupture of the blood vessels was not an accident, but rather the natural and ordinary progression of Mr Pass's pre-existing severe coronary atherosclerosis. The Court of Appeal further held that there was no evidence to suggest that the rupture which caused the thrombosis to occur was brought on by anything other than the disease process.

The fact that the development of the thrombus was not inevitable and the rupture was unexpected did not render the event an accident. The Court of Appeal held that an ordinary person would regard the rupture as "part and parcel" of Mr Pass's long-standing severe coronary atherosclerosis. In fact, the Court of Appeal considered that an ordinary person would regard the entire process, including the rupture, the formation of the thrombus, the occlusion of the artery, the acute myocardial infarction and Mr Pass's death as a disease process and not an injury resulting from an accident.

Having found that the rupture was not an accident, the Court of Appeal nevertheless went on to consider the exclusions to the definition of injury contained in the Policy. The Court of Appeal disagreed with the trial judge's finding that the formation of the thrombus, the blocking of the artery by the thrombus and the myocardial infarction was not a disease. Accordingly, in the event that Mr Pass's injury was caused by an accident, exclusion (a) would apply to exclude it from being an injury as defined in the Policy.

The Court of Appeal agreed that the second exclusion to the definition of injury relating to aggravations of pre-existing injuries would not apply. The Court of Appeal noted that while Mr Pass had suffered a myocardial infarction in February 2000, there was no evidence that the myocardial infarction on 17 April 2000 was an aggravation of that injury for exclusion (b) to apply. Moreover, the Court of Appeal noted that the exclusion (b) referred to pre-existing injuries and not pre-existing diseases.

Implications

In approaching the construction of a policy of insurance it must be interpreted according to its natural and ordinary meaning.

In determining whether an injury was caused by an accident it is important to bear in mind that there must be an accident which gives rise to the injury, it will not suffice that the injury was accidental.

The natural and ordinary progression of a disease which is not brought on by anything other than the ordinary disease process is not an accident caused by an injury.

1. Pullin JA, Newnes JA and Mazza J

2. (1986) 160 CLR 513

3. (1960) 103 CLR 588

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