When is a Heart Attack not an Accident? by TurksLegal

When is a Heart Attack not an Accident? By John Myatt | May 2011 Area of Expertise | Financial Services & Life Insurance

Summary The Court of Appeal of the Supreme Court of Western Australia recently ruled on whether death caused by the formation of a blood clot inside a coronary artery was caused by ‘bodily injury’ that resulted from an ‘accident’ within the meaning of a policy of insurance. The case revisits after many years the issues surrounding the concept of an ‘accident’ previously ruled on by the High Court in the well-known case of Australian Casualty Co Ltd v Federico but this time in the context of a fatal heart attack and against a background of progressive heart disease of which the insured was unaware.

Who Does This Impact? Sickness and accident and life insurers, their claims and product managers and their legal advisers.

What Action Should Be Taken? The case highlights the thin line that separates the concepts of injury and disease and the importance to both product managers and claims professionals of how radically different outcomes may result from the judicial interpretation of nuances in policy wordings.

Background Mr Pass was on a work related journey when he collapsed at Changi Airport in Singapore. At the time he was insured under a Group Personal Accident and Corporate Travel Plan underwritten by the insurer. His widow claimed payment of $250,000 under the personal accident section of the policy. This section provided cover in the following terms: 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.

Death of an insured person was one of the insured events in the Table. ‘Injury’ was relevantly defined as: …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.

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When is a Heart Attack not an Accident? by John Myatt

According to his death certificate, the cause of Mr Pass’s death was a thrombosis of the left anterior descending coronary artery. He had presented at the emergency department of Royal Perth Hospital over a month before his death complaining of sharp chest pains. However, an ECG was performed which was normal and he was discharged without hospitalisation or further investigation. He was consequently unaware of the underlying disease which caused the thrombosis and was apparently in good health immediately before he collapsed. No external event occurred which could have caused the thrombosis. The insurer declined the claim on the ground Mr Pass had not suffered an injury as defined in the policy and the initial trial judge, Judge Martino in the District Court of Western Australia, upheld that decision. Mrs Pass appealed to the Court of Appeal.

The Decision Mrs Pass’s counsel argued that Judge Martino had made an error of law in holding that the thrombosis was not a ‘bodily Injury resulting from an accident’ within the meaning of the definition of ‘injury’. The insurer argued to the contrary that the trial judge’s decision on this issue was correct whilst also asserting that Judge Martino should also have found that the claim fell within the terms of the exception created by paragraph (a) of the definition of ‘injury’ because it was a consequence ‘of an Injury ….ordinarily described as being a disease’. The leading judgment in the Court of Appeal was written by Justice Mazza, with whom Justices Newnes and Pulllen agreed. The Court made detailed findings about the cause of death which were central to its legal conclusions. It found that at the time of his death, Mr Pass had severe and progressive coronary atherosclerosis. This condition, according to the expert medical evidence, had existed for many years. Fatty plaque had collected on the wall of the coronary arteries which over time thickened and became harder. As a result, all Mr Pass’ major coronary arteries had become narrower and his left anterior descending coronary artery was almost completely obstructed. Over time, small blood vessels had infiltrated the plaque and these blood vessels inexplicably ruptured and haemorrhaged without warning. A thrombus (or blood clot) formed in the left anterior descending coronary artery, which caused a blockage of that vessel and this caused a fatal heart attack. The development of thrombosis in a person with severe coronary atherosclerosis such as the 37 year old Mr Pass was very common, but was not inevitable. Mrs Pass’s counsel argued that the relevant ‘accident’ was the rupture of the blood vessels within the plaque and the relevant bodily injury which resulted was the blockage of the left descending coronary artery which led to the heart attack. These submissions were consistent with Judge Martino’s conclusions that ‘bodily injury’ meant, in its normal usage, harm or damage done to the body or a part of the body and that an accident is an unexpected and unintended mishap, which need not be external to the body.

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When is a Heart Attack not an Accident? by John Myatt

In particular, he concluded that an accident could be an event internal to the body and does not have to be violent, external or visible unless it is expressly defined in this way. The adverb ‘fortuitously’ added nothing to the words ‘resulting from an accident’. The Court of Appeal accepted his construction of these terms of the policy was correct. Judge Martino had then applied this construction to the question of whether Mr Pass’ death was an ‘injury’ as defined in the policy and found that the rupture of the fine blood vessels was not an ‘accident’. The Court of Appeal also agreed with him on this point, concluding that while the rupture of the fine blood vessels was unexpected and unintended, that was not sufficient to make it an accident. This was because, applying the test put forward by Chief Justice Gibbs in the High Court in Australian Casualty Co Ltd v Federico,1 there must be an accident which causes injury, it is not enough that the injury was simply accidental in the sense of being unexpected or unintended. In Federico the High Court gave various examples of an accident which causes injury2 such as an explosion of a boiler, the collapse of a building or the failure of brakes of a motor vehicle which occur independently of any act of the person injured. Similarly it may involve an involuntary act of the injured person such as slipping and falling or dropping a heavy object on one’s foot or as in Federico itself a worker engaging in vigorous activity which places stress on the spinal cord. Specifically, on the subject of the bursting of a blood vessel the High Court said; If the muscle or blood vessel be already in an unsound condition, there may be room for argument about whether the straining of the muscle or the breaking of the blood vessel is properly to be seen as having been caused by the pre-existing condition rather than by the unintentional and unexpected excessiveness of the pressure created by the exertion. If it was in a sound condition, however, it will be plain that the damage to muscle or blood vessel was caused by the unintentional and unexpected excessiveness of the pressure. As a matter of ordinary language, the injury in such a case is caused by accident or mishap.3

The eventual conclusion of the Court of Appeal applying this reasoning was that in Mr Pass’s case that the rupture caused the thrombosis to occur and that; This process was a natural and ordinary progression of his disease. There is nothing on the evidence to show that it was brought on by anything other than the disease’s autogenous process.4

In other words there was no intervening accidental event which caused the rupture to occur; it was simply part of the progress of the disease. Perhaps unsurprisingly in light of this reasoning the Court of Appeal also concluded that the trial judge should have found that the exception in paragraph (a) of the definition of ‘injury’ ought to apply because the rupture was a consequence ‘of an Injury ….ordinarily described as being a disease’. The appeal was therefore dismissed.

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When is a Heart Attack not an Accident? by John Myatt

Implications The case highlights the thin line that separates the concepts of injury and disease and the importance of policy wordings that properly understand and reflect correct judicial interpretation of these concepts. It is probable for instance that had the policy wording defined the concept of injury in terms that all that was required was an ‘accidental injury’ rather than an ‘injury caused by an accident’ (and there had been no exception of the kind found in paragraph 9a) the claim would have been payable. As it was unnecessary to decide the issue the case leaves unresolved the dilemma presented by the High Court in the example it gave in Federico, namely how the case would be decided when ‘unexpected excessiveness’ of the pressure created by exertion causes a diseased blood vessel to burst. It remains to be seen whether in this context an exclusion of the kind which appeared in paragraph (a) of the definition in this policy would enable the insurer to resist the claim.

Pass v Gerling Australia Insurance Company Pty Ltd [2011] WASCA 93 (13 April 2011)

End notes 1

[1986] HCA 32; (1986) 160 CLR 513

See the judgment of Wilson, Deane and Dawson JJ at paragraph 14

Also at paragraph 14

At paragraph 71

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When is a Heart Attack not an Accident? by John Myatt

For more information, please contact: John Myatt Partner T: 02 8257 5740 john.myatt@turkslegal.com.au

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