Insurance Law

Citation(2017) 18 SAL Ann Rev 519
Publication year2017
AuthorWinston KWEK Choon Lin LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Adjunct Associate Professor, Faculty of Law, National University of Singapore.
Published date01 December 2017
Date01 December 2017

18.1 In August 2016, the UK Insurance Act 2015 took effect in the UK. The Singapore Academy of Law formed a Law Reform Subcommittee (Insurance) in 2017 to study the changes introduced by the UK Insurance Act and to evaluate if Singapore ought to adopt these changes. The subcommittee has targeted to release a paper towards the end of 2018. In the meantime, in 2017 only two cases have been reported, both of which make for interesting reading.

Personal accident insurance – Death by mixed drug intoxication – Accident or suicide?

18.2 The first reported case is the Court of Appeal decision of Quek Kwee Kee Victoria v American International Assurance Co Ltd.1 Briefly, the deceased ran a successful family business manufacturing and selling popiah but years of carrying loads of flour needed to manufacture popiah and a number of falls left him with chronic back pain; he also developed insomnia, depression and anxiety. As a result, he consulted a pain specialist as well as a psychiatrist. Between 2009 and 2012, he was hospitalised on various occasions for treatment of his physical and psychological ills. In early 2012, the deceased commenced legal proceedings against his brother who he felt had cheated his uneducated siblings, which proceedings the deceased's physicians assessed to have added stress on the deceased. During his last hospitalisation between 2 and 31 July 2012, the deceased was treated for his back pain and his depression. Yet, during that time, he purchased two second-hand luxury cars. Upon discharge, he was prescribed 14 different types of medicine by his doctors.

18.3 On the morning of 4 August 2012, the deceased was found lying unresponsive on his bedroom floor. He was rushed to the hospital and pronounced dead shortly thereafter. The pathologist concluded that the cause of the deceased's death was “multi-organ failure with pulmonary haemorrhage, due to mixed drug intoxication” and that the death was “not due to a natural disease process”. Four psychiatric drugs prescribed

by Dr Ang, namely, bromazepam, duloxetine, mirtazapine and olanzapine, were also found with “elevated” concentrations in the deceased's post-mortem blood. After preliminary investigation, the state coroner concluded that the deceased had, in all probability, taken an overdose of his prescription drugs with the intention of ending his life.

18.4 The appellants were the executors of the deceased's estate and the respondents were insurance companies. The deceased had purchased two insurance policies with the first respondent under which the first respondent agreed, subject to certain conditions, to pay the total sum of $1.2m if the deceased sustained an injury in an accident that resulted in the loss of his life (“the Insurance Policies”). These policies were later transferred to the second respondent. After the deceased's death, the appellants presented their claim under the Insurance Policies. The second respondent declined to pay the assured sums, taking the position that the deceased's death was not caused by injury sustained in an accident. The appellants sued the respondents.

18.5 In Quek Kwee Kee Victoria v American International Assurance Co Ltd,2 the trial judge dismissed the appellants' claim, holding that the deceased had consumed overdoses of at least three drugs, and that as a result, his death was not an accident entitling the estate to payment under the Insurance Policies. The appellants appealed.

18.6 The Court of Appeal allowed the appeal and in its written judgment took the opportunity to set out the preferred approach the Singapore courts will adopt when faced with construction of insurance policies.

18.7 Noting that this was the first time that the Singapore court was called upon to construe the term “accident” in the context of personal accident insurance policies, the Court of Appeal embarked on a review of decisions across the Commonwealth, and opined that beyond the definition postulated by Mustill LJ in Kathleen De Souza v Home and Overseas Insurance Co Ltd:3

The word ‘accident’ involves the idea of something fortuitous and unexpected, as opposed to something proceeding from natural causes; and injury caused by accident is to be regarded as the antithesis to bodily infirmity by disease in the ordinary course of events …

there is limited scope for precision of the contractual nature of an insurance policy given that the entitlement of the insured to the assured sum generally depends on the precise way in which the insured risk has

been defined in the policy and on how that is applied to the facts of the case. Moreover, courts have arrived at differing conclusions even when similar language has been used in different policies.

18.8 Over time, the UK courts settled on an approach that drew a distinction between intended means and unintended results – in Clidero v Scottish Accident Insurance Co,4 the insured had, while putting on his stocking, caused his colon to slip and distend, which then led to his death. In an action under a personal accident insurance policy, the Scottish Court of Session (First Division) unanimously held that the insured's injury was not caused by “violent, accidental, external and visible means” as set out in the policy, because the insured's conduct in putting on his stockings was intentional and voluntary and there was no other external factor that affected the insured's movement which resulted in the injury. The court reasoned thus:

The question, in the sense of this policy, is not whether death was the result of accident in the sense that it was a death which was not foreseen or anticipated. That is not the question. The question is, in the words of this policy, whether the means by which the injury was caused were accidental means. The death being accidental in the sense in which I have mentioned, and the means which lead to the death as accidental, are to my mind two quite different things. A person may do certain acts, the result of which acts may produce unforeseen consequences, and may produce what is commonly called accidental death, but the means are exactly what the man intended to use, and did use, and was prepared to use. The means were not accidental, but the result might be accidental. Now, if that is so, where does the question of accident come in here? There is no evidence, as your Lordship pointed out, that anything unusual or exceptional occurred as to the means or cause of this death. The man was just doing what he meant to do, and apparently a most unfortunate and unexpected result happened, the man's death.

18.9 Another instance of such a distinction is seen in Landress v Phoenix Mutual Life Insurance Co,5 where the Supreme Court of the US held that a man who died of heatstroke while playing golf had not died of accidental means because he had voluntarily exposed himself to the sun's rays.

18.10 The Court of Appeal noted that the courts in the Commonwealth have rejected this distinction between intended means and unintended results, for instance, in New Zealand,6 Scotland,7

Australia8 and Canada.9 In Martin v American International Assurance Life Co,10 McLachlin CJ, delivering the judgment of the Supreme Court of Canada, said:

10 The insurers argue that the category of deaths caused by accidental means is narrower, in that it excludes accidental deaths that are the natural effects of deliberate actions. In their view, a death is only caused by accidental means when both the death and the actions that are among its immediate causes are accidental.

12 This view seems to me, however, to be problematic. Almost all accidents have some deliberate actions among their immediate causes. To insist that these actions, too, must be accidental would result in the insured rarely, if ever, obtaining coverage. Consequently, this cannot be the meaning of the phrase ‘accidental means’ in the policy. Insurance policies must be interpreted in a way that gives effect to the reasonable expectations of the parties … A policy that seldom applied to what reasonable people would consider an accidental death would violate this principle.

13 In my view, the phrase ‘accidental means’ conveys the idea that the consequences of the actions and events that produced death were unexpected. Reference to a set of consequences is therefore implicit in the word ‘means’. ‘Means’ refers to one or more actions or events, seen under the aspect of their causal relation to the events they bring about.

14 It follows that to ascertain whether a given means of death is ‘accidental’, we must consider whether the consequences were expected. We cannot usefully separate off the ‘means’ from the rest of the causal chain and ask whether they were deliberate … Hence, to determine whether death occurred by accidental means, we must look to the chain of events as a whole, and we must consider whether the insured expected death to be a consequence of his actions and circumstances.

[emphasis added]

18.11 On this basis, the court held that the phrases “accidental death” and “death by accidental means” had essentially the same meaning and connoted a death that was in some sense unexpected. The Court of

Appeal agreed with the observation of McLachlin CJ and added, by way of illustration:11

[We] prefer the view that the use of phrases such as ‘accidental means’ would not restrict the situations covered by a personal accident insurance policy to those where the proximate cause of the insured's injury or death was not a deliberate or voluntary action on the part of the insured. For example, if a person inures himself by driving off a cliff in the mistaken belief that the road continued, that person would have met with an ‘accident’ just as much as one who slips and factures his leg while walking on a slippery surface. It would, in our views, accord with ordinary experience to hold that the injury suffered by an insured in such cases would be a result of ‘accidental means’.

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