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[1992] ZASCA 116
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Concord Insurance Company Ltd. v Oelofsen NO (448/90) [1992] ZASCA 116; [1992] 2 All SA 448 (A) (21 August 1992)
/CCC
CASE NO 448/90
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the
matter between:
CONCORD INSURANCE COMPANY LIMITED
APPELLANT
and
CARMEL MARIE OELOFSEN NO
RESPONDENT
CORAM:
BOTHA, HEFER, GOLDSTONE JJA, HOWIE et HARMS AJJA
DATE
HEARD
: 27 MAY 1992
DATE DELIVERED
: 21 AUGUST 1992
JUDGMENT HEFER, JA
:
During 1985 Cigna Insurance Company S A Limited which has since changed its
name to Concord Insurance Company Limited ("Concord")
issued a policy to
2
Pieter Daniel Oelofsen ("the insured"). In terms which will presently be
cited the policy provided for the payment of certain benefits
inter alia
in the event of the insured's death as a result of bodily injury caused by
accidental means.
On 28 February 1986 the insured died of a heart attack within hours after he
had been involved in a motor accident. After his death
the executrix in his
estate, claiming that the heart attack had been caused by the accident, sued
Concord for payment under the policy.
Concord resisted the claim. The dispute
eventually led to a trial in the Transvaal Provincial Division before DU PLESSIS
J who upheld
the claim (in a judgment reported in 1991(1) SA 74(T)) but granted
Concord leave to appeal to this Court.
The appeal centres on two expressions
3
used in the policy - "bodily injury" and "independently of any other cause".
The context in which the expressions occur will emerge
later but, in order to
understand their relevance, it is first necessary to refer briefly to the
facts.
It appears from the evidence that, since about two years before the accident,
the insured had been suffering from a coronary disease
known as triple artery
athero-sclerosis which in layman's language means the narrowing of the arteries
in question. His condition
was serious in the sense that he might have suffered
a heart attack at any time but he nevertheless led a painless life free from
discomfort and without finding it necessary to take the prescribed medication.
The accident in which he was involved on 28 February
1986 was not particularly
serious. He sustained no
4
apparent physical injury and for about an hour afterwards showed no sign of
having been affected in any way. Only when he was about
to leave the scene of
the accident did the first symptoms of a heart attack appear. He was rushed to
hospital where he received treatment
but ventricular fibrillation developed from
which he could not be resuscitated and he died later the same evening.
The medical experts who testified at the trial were agreed that the immediate
cause of the fibrillation was myocardial ischaemia due
to a constriction in the
area where the arteries had already been narrowed by sclerosis, but differed on
the probable cause of the
constriction. Concord's witness, Dr Baskind, was of
the view that it occurred naturally in the progression of the disease and was
unrelated to the accident. But the
5
executrix called Prof Simson who maintained that the
constriction was
probably caused by a biological process
whereby, due to the shock of the
accident, the
sympathetic nervous system released chemical substances
into the blood. DU PLESSIS J preferred Prof Simson's
view. On his evidence
the learned judge found
"that the ischaemia of the heart was caused by the stress of the collision
coupled with the preexisting disease which together resulted
in a
vasoconstriction with the resultant chain of events described above." (p 81 I-J
of the report).
In this court Mr
Trengove
who argued the
appeal on Concord's behalf accepted the trial court's
finding but submitted that it does not bring the
insured's death within the ambit of the risk undertaken
in the policy. For this argument he relied on what I
will refer to as "the cover clause". It reads as
follows:
"If during any period of insurance an Insured
6
Person sustains Bodily Injury which, independently of any other cause, results
in the Death, or Permanent Disablement of the Insured
Person, the Company will
pay to the Insured Person or his
estate the compensation stated below."
In the present case, Mr
Trengove
submitted, the insured
did not suffer "bodily injury" and,
even if he did, it
did not result in his death "independently of any
other
cause" since the pre-existing disease was a contributory
cause.
The difficulty that I have with the first limb
of the argument is that it proceeds from what Mr
Trengove
called the ordinary meaning of "bodily injury"
instead of the definition of that expression in the
policy itself. According to what I will henceforth
refer to as "the definition"
"'Bodily Injury' shall mean injury which is caused by accidental means and which
within twenty-four months from the date of the accident
results in the Insured
Person's death, dismemberment or permanent
disablement."
7
The definition plainly entails that
any injury of whatever kind
qualifies as "bodily injury" provided only
that it is caused accidentally and results in death (or
dismemberment or permanent disablement). And I know of
no legal grounds for departing in a case like the
present one from the parties' own definition. An
insurance policy falls to be interpreted like any other
contract by ascertaining the parties' intention from the
language used (
Lourens NO v Colonial Mutual Life
Assurance Society Ltd
1986(3) SA 373(A) at 383 E-G).
As WESSELS CJ said in
Scottish Union & National
Insurance Co Ltd v Native Recruiting Corporation Ltd
1934 AD 458
at 465 "if the language is clear we must
give effect to what the parties themselves have said";
and
"...if the contract itself...affords a definite indication of the meaning of
the contracting
8
parties...a court should always give effect to that meaning." (Per INNES J in
Joubert v Enslin
1910 AD 6
at 38).
What we
are really concerned with is the word
injury
which occurs in the definition and the question
whether it
can be said that the insured sustained an
injury according to the ordinary meaning of that word.
For the answer it is necessary to revert to Prof
Simson's evidence. The biological process brought about
by the shock of the accident and leading to the
constriction of the arteries has already been mentioned.
Prof Simson stressed that such a constriction occurs at
the existing sclerotic site and entails in 90% of deaths
in similar cases a fissure in the plague and the release
of a thrombus or thrombi which may cause a total
occlusion of the arteries and lead successively to
myocardial ischaemia, ventricular fibrillation and
9
death. This, in his opinion, was what had happened to
the insured.
Mr
Trengove
accepted Prof Simson's evidence save for his theory of a
fissure developing in and a thrombus being released from the plaque. This
theory, he submitted, is based entirely on statistics and does not constitute
proof on a preponderance of probability. I do not agree.
It is clear that Prof
Simson applied his own expert knowledge as a pathologist and referred to the
statistics merely to bolster his
opinion. There is no reason to doubt the
validity of his theory (which, I may add, was precisely Dr Baskind's theory too
except that
according to Dr Baskind the fissure and thrombus developed naturally
and not as a result of the shock of the accident.)
Accepting then, as I think we must, that a fissure
10
did develop it is quite plain that the insured did sustain an injury. And
even if it did not, the conclusion remains the same. For,
although the word
"injury" is often used to connote the traumatic destruction of the tissues of
the body or a fracture of a bone
or the rupture of an organ, it is not uncommon
to speak of an injury to an organ to describe the impairment of its functional
effectiveness.
The policy itself speaks eg of "
injury
caused by
starvation, thirst and/or exposure to the elements" and elsewhere it is said
that "Bodily Injury shall be deemed to include
death or permanent disablement of
an Insured Person as a result of accidental drowning or gassing". There is
accordingly every reason
to believe that the parties did not intend to limit the
term, and thus to confine the cover, to injuries of the kind first described,
in
my
11
judgment the impairment of the insured's bodily functions by a progressive
pathological process
constituted an injury.
What now remains is the question of causation in connection, firstly, with
the definition and, secondly, with the cover clause.
The definition presents no problem. The trial court found that the
pre-existing athero-sclerotic condition contributed to the fatal
heart attack
but that the accident was its proximate cause. Mr
Trengove
did not
contest this finding and conceded that the definition requires the injury to be
caused no more than proximately by an accident
and, in similar fashion, to
result in the insured's death, dismemberment or disablement. (Cf
Incorporated
General Insurances Ltd v Shooter t/a Shooter's Fisheries
1987(1) SA 842(A)
at 862
12
B-E). It follows that the trial court correctly found that the insured
suffered bodily injury caused by accidental means.
In the context of the cover clause it may similarly be said that the bodily
injury constituted the proximate cause of death but in
view of the words
"independently of any other cause" this is plainly not enough. If the insured's
pre-existing condition was a contributory
"cause" within the
intended
meaning of this word Concord must be absolved.
The emphasis on the intended meaning of the word "cause" serves to indicate
what I conceive to be the correct approach to the problem
at hand. Legal
causation is not a logical concept and the law does not ascribe causative effect
to every logical
sine qua non
(cf
International Shipping Co (Pty) Ltd
v Bentley
13
1990(1) SA 680(A) at 700 E-I). Basically this is so because complex legal
questions - often involving considerations of policy - cannot
be solved
satisfactorily by a general positive application of the simple logical
proposition that a particular fact or state of affairs
cannot be regarded as the
cause of another unless the former is a
sine qua non
for the latter. Such
questions usually arise where several factors concurrently or successively
contribute to a single result and
it is necessary to decide whether any
particular one of them is to be regarded legally as a cause. In criminal law and
the law of
delict legal policy may provide an answer but in a
contractual
context where policy considerations usually do not enter the enquiry, effect
must be given to the parties' own perception of causality
lest a result be
imposed upon
14
them which they did not intend. What must accordingly be decided in the
present case is whether the parties, by referring in the cover
clause to "any
other cause" of an insured's death or disablement, intended to include
his
infirmity.
That they could not possibly have attached a meaning to the word
"cause" which would embrace every conceivable
sine qua non
is clear. Mr
Trengove
conceded that such a construction would make a mockery of the
agreement. The enquiry must accordingly proceed on the basis that the
word was
used in a restricted sense. But there is no express indication of the extent of
the contemplated limitation nor can its
ambit be gauged by way of implication
from the other terms. Why then should we favour an interpretation which would
specifically
include the insured's infirmity? To this
15
question Mr
Trengove
supplied no answer. Not a word is said in the
policy about the insured's state of health either at the time of his application
for
insurance nor at any time thereafter and one is left with the firm
impression that it is something which simply did not concern the
parties.
Because it obviously affects the risk an insured's state of health is commonly
known to be of decisive importance to any
life insurer. Indeed one can almost
describe it as standard practice for insurers to insert a provision in a life
policy whereby
the application for insurance, containing the applicant's answers
to searching questions regarding his medical history and the state
of his
health, is incorporated in the policy. Moreover, it is not unusual for accident
policies to contain specific provisions excluding
liability for the insured's
death or
16
disablement arising from or traceable to any physical defect or infirmity
existing prior to the accident. (Such a provision appeared
eg in the policy
before the court in
Jason v Batten(1930)Ltd
1969 1 L1 Rep 281 (QBD) - a
case on which Mr
Trengove
relied but which is clearly distinguishable -
and in a number of other cases). Bearing this in mind, the significance of the
absence
from the present policy of any reference whatsoever to the insured's
state of health is patent. It is difficult to accept, to say
the least, that the
parties meant to express in the simple words "independently of any other cause"
an intention similar in effect
to the one evinced by the elaborate provisions in
the policies in cases like
Jason v Batten
.
In any event we must apply the rule that
verba fortius accipiuntur contra
proferentem
. In
French
17
Hairdressing Saloons Ltd v National Employers Mutual General Insurance
Association Ltd
1931 AD 60
at 65 it
was said that
"it is an accepted principle in interpreting insurance contracts that it is the
duty of the insurer to make it clear what particular
risks he wishes to
exclude."
Accordingly, as KOTZE JA said in
Norwich Union
Fire
Insurance Society Ltd v South African Toilet Requisite
Co, Ltd
1924 AD 212
at 222,
"(i)t is laid down that, as insurance is a contract of indemnity, it is to be
construed reasonably and fairly to that end. Hence conditions
and provisos will
be strictly construed against the insurers because they have for their object
the limitation of the scope and purpose
of the contract."
(See also
Pereira v Marine and Trade Insurance Co Ltd
1975(4) SA 745(A) at 752 F - 753 A and cases cited
there;
Price and Another v Incorporated General
Insurances Ltd
1983(1) SA 311(A) at 315 G-fin).
18
Although the independent cause provision does not appear in the present
policy under the conditions or
exceptions its object is plainly to limit the liability and the same
principle applies. On a strict and reasonable interpretation
of the policy I
have no doubt that an insured's ill health at the time of the accident was not
intended to constitute another "cause"
of his death or disablement. I say this
for the reasons stated earlier and bearing in mind the frailty of the human body
and the
great variety of physical conditions that may develop at any time and
may aggravate the effect of an injury or in one way or another
contribute to
death or disablement. Reasonably speaking I find it inconceivable that the
parties intended to exclude liability in
every case in which such a condition
occurs. The trial court's conclusion that the insured's
19
death was caused by bodily injury independently of any other cause is
accordingly correct.
The appeal is dismissed with costs including the costs of two counsel.
J J F HEFER, JA
BOTHA, JA ) GOLDSTONE, JA) CONCUR HOWIE, AJA ) HARMS, AJA )