Exclusion – Accidental vs Illness Case 3
Adjudication by Ombudsman
The Claimant’s Accidental Death claim under the personal accident policy was repudiated by the Insurer on the ground the Insured’s death was not due to bodily injury caused solely and independently by an accident.
The Case Manager handling this dispute gave her recommendation in favour of the Insurer. The Claimant who did not accept the recommendation has referred the dispute to the Ombudsman for adjudication.
Investigation and Findings
- The relevant policy provision provides as follow:
Accident means any event of violent, accidental, external and visible nature which shall independently of any other cause be the sole cause of bodily injury.”
- It is not in dispute that the Insured slipped and fell and hit his head against a rock. His forehead was cut and bleeding. He was briefly unconscious. He was taken to hospital by the family members where he died about 10 to 15 minutes later. Post-mortem was not done as the family was not aware that he had an insurance. The cause of death as recorded on the death certificate was unknown.
- The adjuster’s report leaves it to the discretion of the Insurer on the policy liability since the cause of death remains unknown.
Adjudication and Reasons
We adjudicate this dispute in favour of the Claimant on the following grounds:
- Proximate cause of death due to the accidental fall:
Based on the factual matrix of this dispute, the proximate cause of death is due to the accidental fall. The deceased forehead was cut and bleeding due to the fall and this has fulfilled the policy definition of accident whereby it was external and visible. Even though, the deceased was said to have hypertension and on medication, that does not mean his death has anything to do with the hypertension. This is because, there is no medical evidence that the deceased was suffering from any heart related disease or any pre-existing diseases. The burden is on the Insurer to prove that the deceased died due to illness or sickness if that is their contention here.
- Insurance policies must be interpreted to give effect to the object of the contract:
This is a personal accident policy. It is not in dispute that the deceased died after the accidental fall whose head was cut and bleeding. In the case of McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, it was held that:
“Policies must be interpreted to give effect to the object of the contract and avoid making the contract a commercial nonsense.”
- Fair and reasonable as a guiding principle:
One of the main differences between Ombudsman Scheme and a court is that an Ombudsman decides each case according to what he/she considers to be fair and reasonable in the circumstances of the case. In the case of R (on the application of IFG Financial Services Ltd v Financial Ombudsman Services (2005) EWHC 1153, the English court expressly supported the right of the Ombudsman to make an award which differs from that which a court would make, as long as it is fair and reasonable in all the circumstances of the case. The decision was approved by the English Court of Appeal in R v EOS (2008) EWCA Civ 642.
In the absence of any evidence pointing or indicating the deceased died due to other causes, it is only fair and reasonable for the Insurer to pay the claim under the policy.