Concord Insurance Co Ltd v Oelofsen NO

• Jurisdiction: South Africa
• Citation: 1992 (4) SA 669 (A)

Concord Insurance Co Ltd v Oelofsen NO
1992 (4) SA 669 (A)

1992 (4) SA p669

Citation	1992 (4) SA 669 (A)
Court	Appellate Division
Judge	Botha JA, Hefer JA, Goldstone JA, Howie AJA and Harms AJA
Heard	May 27, 1992
Judgment	August 21, 1992

Flynote : Sleutelwoorde B

Insurance — Personal accident policy — Interpretation of — 'Bodily injury' — 'Bodily injury' as defined in policy meaning any injury of whatever kind (provided only that caused accidentally and resulting in death or disablement) — Impairment of insured's bodily functions by progressive pathological process a 'bodily injury'.

C Insurance — Personal accident policy — Interpretation of — 'Independently of any other cause' — Insured covered where bodily injury 'independently of any other cause results in . . . death or . . . disablement' — Insured dying of heart attack within hours of motor accident — Insured suffering from coronary heart disease — Whether, in light of pre-existing heart condition, death occurred 'independently of D any other cause' — Effect to be given to intended meaning of 'cause' — To incorporate into definition of 'cause' every conceivable sine qua non making mockery of policy — 'Cause' accordingly used in restricted sense — Fact that no reference whatsoever in policy to insured's state of health clear indication that issue did not concern parties — On strict E and reasonable interpretation of policy, insured's ill health at time of accident not intended to constitute another 'cause' of death — Inconceivable that it was parties' intention to exclude liability in every case where insured's physical condition aggravating effect of an injury or F in some way contributing to his death — Death caused by bodily injury 'independently of any other cause'.

Headnote : Kopnota

The executrix in the deceased estate of one O instituted an action for payment in a Provincial Division under a personal accident policy issued by the appellant (then known as Cigna Insurance Co of SA Ltd) to O. The G policy provided that the appellant would furnish cover if during the period of insurance the insured sustained 'bodily injury which independently of any other cause results in the death' of the insured. O was subsequently involved in a motor vehicle accident from which he emerged apparently unscathed but within hours of which he suffered coronary vasoconstriction which precipitated a chain of events leading to his death. It appeared that O had for about two years before the accident been suffering from a coronary disease known as triple artery atherosclerosis and that his condition was such that he might have H experienced a heart attack at any time. The respondent's claim was upheld by the Court a quo. On appeal it was submitted on behalf of the defendant that O had not suffered 'bodily injury', and that, even if he had, it had not resulted in his death 'independently of any other cause' since the pre-existing disease had been a contributory cause of his death.

Held, as to whether O had suffered a 'bodily injury', that, bearing in mind the definition thereof in the policy ('injury which is caused by I accidental means and which . . . results in the insured persons' death . . . or disablement'), from which it appeared that any injury of whatever kind qualified as 'bodily injury' (provided it was caused accidentally and resulted in death etc), it was quite plain that O did sustain an injury: although the word injury was 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, an injury could also mean the impairment of bodily J functions by a progressive pathological process such as that suffered by O.

1992 (4) SA p670

A Held, further, as to the question of causation, that in a contractual context effect had to be given to the parties' own perception of causality, and that what accordingly had to be decided was whether the parties, by referring to 'any other cause' of an insured's death or disablement, intended to include pre-existing infirmity.

Held, further, that it was clear that the parties could not have intended to attach a meaning to the word 'cause' which would embrace every conceivable sine qua non as this would have made a mockery of the agreement. B

Held, further, that the enquiry accordingly had to proceed on the basis that the word was used in a restricted sense.

Held, further, that the fact that not a word was said in the policy about O's state of health, either at the time of his application for insurance or at any time thereafter, left the impression that this was something which simply did not concern the parties, especially if it was borne in mind that it was standard practice for insurers to incorporate a detailed C questionnaire regarding the applicant's health into their life policies.

Held, further, that the contra proferentem rule had to be applied to the independent cause provision as its object was plainly to limit the appellant's liability.

Held, further, that on a strict and reasonable interpretation of the policy, O's ill health at the time of the accident was not intended to constitute another 'cause' of his death or disablement: it was inconceivable that the parties intended to exclude liability in every case D in which the insured's physical condition aggravated the effect of an injury or in one way or another contributed to death or disablement.

Held, accordingly, that the insured's death was caused by bodily injury independently of any other cause and that the appellant was therefore liable. Appeal dismissed.

The decision in the Transvaal Provincial Division in Oelofsen NO v Cigna Insurance Co of SA Ltd 1991 (1) SA 74 confirmed. E

Case Information

Appeal from a decision in the Transvaal Provincial Division (Du Plessis J), reported at 1991 (1) SA 74. The facts appear from the judgment of Hefer JA.

W H Trengove SC (with him F J Bashall) for the appellant referred to the F following authorities: Jason v Batten [1969] 1 Ll Rep 281 (QB); Bester v Commercial Union Versekeringsmaatskappy 1973 (1) SA 796 (A); Re J S (a minor) [1980] 1 All ER 1061 (CA); Cross Evidence 6th ed at 149.

W P N Sceales (with him A A Louw) for the respondent referred to the following authorities: Oelofsen NO v Cigna Insurance Co of SA Ltd 1991 (1) SA 74 (T); Govan v Skidmore 1952 (1) SA 732 (N) at 734; Taylor NO v G National Mutual Life Association of Australasia Ltd 1988 (4) SA 341 (E) at 346H-J; Scottish Union...