*WHAT IS AN ACCIDENT?*

SUPREME COURT

*WHAT IS AN ACCIDENT?*

Accident – Where a disease is caused or transmitted in the natural course of events, it would not be covered by the definition of an accident - However, in a given case or circumstance, the affliction or bodily condition may be regarded as an accident where its cause or course of transmission is unexpected and unforeseen. *2019 SCeJournal 457*

 

 Accident –  Disease – Insurance - Instances where a bodily condition from which an individual suffers may be the direct consequence of an accident - A motor car accident may, for instance, result in bodily injuries, the consequence of which is death or disability which may fall within the cover of a policy of accident insurance. 2019 SCeJournal 457

 

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Insurance - Accident –  Disease – Death due to malaria - In a policy of insurance which covers death due to accident, the peril insured against is an accident: an untoward happening or occurrence which is unforeseen and unexpected in the normal course of human events -  The death of the insured was caused by encephalitis malaria -  Claim founded on the hypothesis that there is an element of uncertainty about whether or when a person would be the victim of a mosquito bite which is a carrier of a vector-borne disease  - The submission is that being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident. We do not agree with this submission - The insured was based in Mozambique. According to the World Health Organization’s World Malaria Report 2018, Mozambique, with a population of 29.6 million people, accounts for 5% of cases of malaria globally - It is also on record that one out of three people in Mozambique is afflicted with malaria - In light of these statistics, the illness of encephalitis malaria through a mosquito bite cannot be considered as an accident - It was neither unexpected nor unforeseen - It was not a peril insured against in the policy of accident insurance.    

*2019 SCeJournal 457*

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*Accident defined*:

“13…An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words an event or occurrence the happening of which is ordinarily expected in the normal course by almost everyone undertaking a rail journey cannot be called an “accident”. But the happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident.” Union of India v Sunil Kumar Ghosh, (1984) 4 SCC 246

 

 “4…The popular and ordinary sense of the word ‘accident’ means the mishap or an untoward happening not expected and designed to have an occurrence is an accident. It must be regarded as an accident, from the point of view of the workman who suffers from it, that its occurrence is unexpected and without design on his part, although either intentionally caused by the author of the act or otherwise.” Regional Director, ESI Corporation v Francis De Costa 1993 Supp (4) SCC 100.

 

 “7…the expression accident means an untoward mishap which is not expected or designed.”

P Ramanatha Aiyar’s Law Lexicon 3rd Edition, 2012, defines the expression ‘accident’: “an event that takes place without one’s foresight or expectation; and event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected, chance, causality, contingency.” Jyothi Ademma v Plant Engineer, Nellore (2006) 5 SCC 513

 

 ‘death by accident’ as: “Death from any unexpected event, which happens, as by chance, or which does not take place according to the usual course of things.” Lovelace v Traveler’s Protective Association 47 Am. St. Rep. 638,

 

14. In order to constitute an accident, the event must be in the nature of an occurrence which is unnatural, unforeseen or unexpected. The present case concerns death caused due to a disease being contracted. Section II of the insurance policy covers death caused by accident. Death or injury from accident caused by insanity or venereal disease has been specifically excluded and not covered under the policy. The issue is whether death caused by any other disease not specifically excluded under the policy, is be covered. The issue whether a disease can be covered under the ambit of the expression ‘accident’ has been analysed in, where it was stated:

“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 caused by disease in the ordinary course of events.” A W Baker Welford’s The Law Relating to Accident Insurance (2nd Edition, 1932)

 

 “Accident excludes disease. It follows from the above principle that a disease cannot be classified as an accident. Although disease proximately caused by an accident, in the absence of any exclusion for disease will be covered by a personal accident policy, it is well established that the word “accident does not include disease and other natural causes, and implies that intervention of some cause which is brought into operation by chance and which can be described as fortuitous.” Colinvaux’s Law of Insurance, (10th Ed.by Robert Merkin)

 

 ‘accidental death insurance’ : “Insurance that provides coverage in the event of death due to accidental injuries, but not illness. In the event of death, payment is made to the insured’s beneficiary. If bodily injury occurs (e.g., the loss of a limb), the insured receives a sum specified by the contract. (insurance)” P Ramanatha Aiyar’s Advanced Law Lexicon 3rd Ed. (2005):

 

Baker Welford regards ‘accident’ as a term which does not include disease in the ordinary course of events. Colinvaux acknowledges that a disease caused as a proximate cause of an accident will be covered by a policy for personal accident, in the absence of an exclusion. But then it is also argued that the term accident does not include disease.

 

 “It is difficult to define the term “accident”, as used in a policy of this nature, so as to draw with perfect accuracy a boundary line between injury or death from accident, and injury or death from natural causes; such as shall be of universal application. At the same time we think we may safely assume that, in the term “accident” as so used some violence, casualty, or vis major, is necessarily involved. We cannot think disease produced by the action of a known cause can be considered as accidental. Thus diseases or death engendered by exposure to heat, cold, damp, the vicissitudes of climate, or atmosphere influences, cannot, we think properly be said to be accidental; unless at all events, the exposure is itself brought about by circumstances which may give it the character of accident. Thus (by way of illustration), if, from the effects of ordinary exposure to the elements, such as is common in the course of navigation, a mariner should catch cold and die, such death would not be accidental; although if, being obliged by shipwreck or other disasters to quit the ship and take to the sea in an open boat, he remained exposed to wet and cold for some time, and death ensued therefrom, the death might properly be held to be the result of accident. It is true that, in one sense, disease or death through the direct effect of a known natural cause, such as we have referred to, may be said to be accidental inasmuch as it is uncertain beforehand whether the effect will ensue in any particular case. Exposed to the same malaria or infection, one man escapes, another succumbs. Yet diseases thus arising have always been considered, not as accidental, but as proceeding from natural causes.

 “In the present instance, the disease called sunstroke, although the name would at first seem to imply something of external violence, is, so far as we are informed, an inflammatory disease of the brain, brought on by exposure to the too intense heat of the sun’s rays. It is a disease to which persons exposing themselves to the sun in a tropical climate are more or less liable, just as persons exposed to the other natural causes to which we have referred are liable to disastrous consequences therefrom. The deceased, in the discharge of his ordinary duties about his ship, became thus affected and so died.

“We think, for the reasons we have given, that his death must be considered as having arisen from a “natural cause,” and not from “accident,” within the meaning of this policy.” Queen’s Bench Division, Sinclair v Maritime Passengers Assurance (1861) 3 E&E 478

 

 “Now the expression “injury by accident” seems to me to be a compound expression. The words “by accident” are, I think, introduced parenthetically as it were to qualify the word “injury,” confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design.” Fenton v Thorley & Co. Ltd. (1903) AC 443, the House of Lords

 

 “The doctor called as a witness by the workman said that the paralysis was an “occupation” disease, which he should expect in a certain number of cases to follow on the work on which the workman was engaged. It was not unforeseen; it was not unexpected… Injury by disease alone, not accompanied by an accident, is expressly excluded, as pointed out by Lord Macnaughten in Fenton v Thorley & Co. Steel v Cammel, Laird & Co. (1905) 2 K.B. 232,

 

 “59. In the present case the evidence is that genital herpes is a sexually transmitted virus that spreads by sexual intercourse. Sex is its normal method of transmission. As such, unlike for example an internally developing condition leading to an aneurysm,  its  transmission  requires  an outsider’s participation. But the same could be said of infectious diseases generally. Viruses and bacteria pass, directly or indirectly, from person to person, and occasionally across species. In the “ordinary language of the people”, an individual would not say on coming down with influenza that “I had an accident”. We come down with the flu “in the ordinary course of events.”(emphasis supplied) Co-operators Life Insurance Company v Randolph Charles Gibbens 2009 SCC 59, the Supreme Court of Canada

 

 

 

  • Accident - Death as a consequence of the electrocution - That the fact as to whether there was a wire of electricity board or illegal tapping was going on, the process was on for some time and under the nose and eyes of the representatives of the petitioners - It is not necessary that a direct connection must cause damages but even in-action to perform the statutory duties which may cause such consequence would result in the liability being affixed  on the Punjab State Electricity Board. (174) PLR