PASS V GERLING INSURANCE

[2011] WASCA 93, Supreme Court of Western Australia, 13 March 2011

Insurance (personal injury) - Assured suffering heart attack - Whether death resulting from accidental bodily injury - Whether assured suffering from "disease"

Mr Pass died suddenly at Changi Airport. The cause of death was thrombosis of the left anterior descending coronary artery. He had been suffering from severe coronary atherosclerosis (narrowing of the arteries) for some years. Mr Pass was insured under a group policy underwritten by Gerling. Under the heading, "personal injury", the policy provided benefits if an insured person suffered "an injury", defined as "bodily Injury resulting from an accident that occurs fortuitously to the Insured Person during the Period of Insurance and results in [death] within twelve 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". The trial judge held that Mr Pass had not suffered an injury. His construction of the policy was that the word "injury" meant harm or damage done to the body or a part of the body, that the term "accident" meant an unexpected and unintended mishap which did not need to be external to the body, and that the word "fortuitously" added nothing. The judge ruled that there was an injury but no accident, and it was not enough that the injury was accidental. He went on to find that, if that was wrong, exclusion (a) did not apply because there was no disease involved, and exclusion (b) did not apply because there was no pre-existing injury. The Western Australian Supreme Court dismissed the appeal. There was no accident. Mr Pass had suffered a progressive illness, and the thrombosis was the ordinary and natural progression of the disease: the fact that it was not inevitable and that it was unexpected did not make it an accident. Further, the entire process was a disease and not a bodily injury, so that exclusion (a) in any event applied.