Alcohol-related death was not accidental

LAW REPORT v 20 February 1996
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The Independent Online
Dhak v Insurance Co of North America (UK) Ltd; Court of Appeal (Lord Justice Neill, Lord Justice Aldous and Sir John Balcombe); 6 February 1996

A woman who, in order to relieve severe back pain resulting from an injury at work, regularly consumed excessive amounts of alcohol and who one day suddenly died from its effects, had not died of a "bodily injury caused by accidental means" within the terms of her life insurance policy.

The Court of Appeal dismissed an appeal by the plaintiff, Kashmir Singh Dhak, against the decision of Judge Malcolm Lee QC, on 28 February 1994, that he was not entitled to claim against the defendant insurer the sum of pounds 50,000 payable on death under the life insurance policy taken out by his wife, Inderjit Dhak, who died at the age of 43 on 28 October 1986.

Mrs Dhak had been a ward sister with many years of experience as a nurse. In May and June 1986 she suffered severe back pain after lifting a heavy patient. She returned to work after a period of treatment but continued to suffer significant pain. She then began to consume alcohol, to an increasing extent, to relieve this pain.

On the morning of 28 October 1986 her husband went to wake her and found her dead. The pathologist at the inquest said the blood/alcohol concentration in her body was very high. The inquest verdict was "death by misadventure".

The judge found that she must have consumed a considerable quantity of alcohol the night before she died, at least the contents of a bottle of gin over a relatively short period. He concluded on the medical evidence that the immediate cause of her death was asphyxia due to inhalation of vomit.

The provisions of the policy on which the plaintiff relied provided cover in respect of "bodily injury resulting in death" and defined "bodily injury" as that "caused by accidental means". The defendant denied liability.

Michael Spencer QC and Richard Hone (Graham Pearce & Co, Solihull) for the plaintiff; Crawford Lindsay QC and David Pittaway (Barlow Lyde & Gilbert) for the defendant.

Lord Justice Neill said he was quite satisfied Mrs Dhak's death resulted from bodily injury within the meaning of the policy. The difficult issue was whether that bodily injury had been caused by accidental means.

It was argued for the plaintiff that English law did not distinguish between an accidental result and an accidental means. Alternatively, if English law did draw such a distinction, it was necessary to look at the "proximate cause", i.e. the effective or dominant cause of the injury. In this case, the proximate cause was the inhalation of vomit; the ingestion of alcohol was merely part of the background.

It was accepted that "accidental means" did not extend to the case where the proximate cause was the deliberate taking of an appreciated risk. But Mrs Dhak did not take a calculated risk, and the judge was wrong in concluding that she must have appreciated that her drinking presented a real danger, and in relying on the principle that "a man is taken to intend the natural consequences of his acts".

However, in his Lordship's judgment, it had not been established that the bodily injury to Mrs Dhak was "caused by accidental means" within the meaning of the policy. The words "caused by accidental means" were a clear indication that it was the cause of the injury to which the court must direct its attention.

Where an insured embarked deliberately on a course of conduct which led to some bodily injury, one had to consider: a) Did the insured intend to inflict some bodily injury to himself? b) Did the insured take a calculated risk that if he continued with that course of conduct he might sustain some bodily injury? c) Was some bodily injury the natural and direct consequence of the course of conduct? d) Did some fortuitous cause intervene?

In this case there was no suggestion that Mrs Dhak intended any bodily injury to herself. But the judge was justified in finding that she must have been well aware of the consequences and dangers of drinking alcohol to excess and that she must be taken to have foreseen what might happen in this event. While feeling the greatest sympathy for Mr Dhak, his Lordship felt unable to say that Mrs Dhak's injury and death were the result of some fortuitous cause.

Lord Justice Aldous and Sir John Balcombe agreed.