Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 14
CA96/09	OPINION OF LORD MALCOLM in the cause WALTER ALEXANDER MITCHELL AND ANOTHER Pursuers; against GREAT LAKES REINSURANCE (UK) PLC Defenders: ________________

Pursuers: Summers QC; Beynon; Lefevre Litigation

Defenders: Duthie; Burness Paul & Williamsons LLP

25 January 2013

[1] This action is brought by the executors nominate of the late Walter McCann. Mr McCann died at Aberdeen Royal Infirmary on 3 July 2006, aged 77 years. The pursuers seek payment under a personal accident insurance policy which, at the time of the death, was underwritten by the defenders. For present purposes the relevant term of the policy is as follows:

"They will pay you the appropriate benefit if...an insured person sustains bodily injury which, within 52 weeks, is the sole cause of permanent disability, death or hospitalisation."

A "bodily injury" is defined as:

"resulting solely and directly from accidental outward violent and visible means and does not include sickness or disease or any natural occurring condition or degenerative process."

The policy also provides that where an insured person is aged 65 years or over at the relevant time, permanent disability benefit will not be payable and all other benefits will be halved.

[2] The deceased was involved in a road traffic accident on 26 June 2006. His injuries included a fracture of the sternum and multiple rib fractures. He was admitted to hospital but his condition deteriorated. He developed pneumonia and died a week later. A post mortem examination found that he had died from pneumonia, which led to respiratory and cardiac failure.

[3] In due course a claim was made under the policy, but it was refused. It was said that Mr McCann's demise was not caused exclusively by the accident, but also by certain severe pre-existing medical conditions. In the post mortem report dated 21 July 2006 they were described as:

"notable ischaemic heart disease with a significant zone of fibrosis and thinning of the myocardium of the left ventricle, and cardiac enlargement, including conspicuous right ventricular hypertrophy, the latter testifying to chronic pulmonary disease."

The post mortem report continued:

"It is noted that (the deceased) had suffered a fractured sternum and several fractured ribs as a driver involved in a vehicular collision on 26 June 2006, which had precipitated his initial admission to hospital; there is no indication that these injuries would have been fatal in themselves, but might have contributed to his death in a minor way, given his long-term general state of cardiovascular and respiratory debility, which would have allowed no reserve to cope with even trivial physical insult."

[4] The case has a lengthy procedural history. A debate took place before Lord Hodge upon certain agreed facts and reports. An opinion was issued on 5 May 2010 (2010 CSOH 59) explaining the reasons for the dismissal of the action. A reclaiming motion was successful and the action remitted to the Outer House, all on the basis that the pursuers' claim could not be resolved without the full facts being explored in evidence.

[5] I heard a proof at which the pursuers were represented by Mr Summers QC and Mr Beynon. The defenders were represented by Mr Duthie. The pursuers led Stephen Large in evidence. Mr Large is a consultant cardiac-thoracic and transplant surgeon at Papworth Hospital in Cambridgeshire. The defenders led evidence from Hussein El Shafei, a consultant cardio-thoracic surgeon at Aberdeen Royal Infirmary, and also from the author of the post-mortem report, namely Dr James Grieve, consultant forensic pathologist at the University of Aberdeen. All of the witnesses gave their evidence in a thorough, careful and impressive manner. While certain differences in detail or emphasis did emerge, they are not material to the proper resolution of the case.

Mr Large's evidence

[6] In his report, which was adopted during his evidence, Mr Large explained that the bodily injuries directly caused by the road traffic accident were a fractured sternum and fractured ribs. Mr McCann's pre-morbid or chronic underlying conditions included chronic obstructive pulmonary disease (COPD); raised right hemi-diaphragm of unknown aetiology; and ischaemic heart disease complicated by atrial fibrillation and myocardial infarction (heart attack), but with only mildly impaired left ventricular function. On the balance of probabilities, but for the chronic underlying medical conditions Mr McCann would have survived the direct consequences of the accident. They would not have affected his life expectancy. Mr Large considered the heart condition to be of little importance. The ultimate outcome would have been the same if the deceased suffered from only his pre-existing chest problems. The chronic COPD was "a necessary ingredient" in the death of the deceased. Mr McCann's lungs were chronically damaged by a degenerative process, probably due to a past history of protracted cigarette smoking. Had Mr McCann's bodily injuries not involved rib or sternal fractures, he would have survived the accident.

[7] The heart and lung pre-accident morbidities were chronic, and presented acutely from time to time. According to Mr Large there was no evidence suggesting that any of the pre-accident morbidities were "active" on 26 June 2006. The COPD was the most important pre-accident morbidity contributing to the death, which Mr Large described as being "caused by bodily injuries sustained by his RTA on 26 June 2006". He believed that the ischaemic heart disease had little or no role to play. Had there been no accident it was unlikely that Mr McCann would have died within 52 weeks of its date. On the balance of probabilities a much younger patient with the same degree of COPD would have survived the injuries.

[8] Mr Large expressed the view that the pre-accident morbidities "should be seen as background conditions." In their own right they were unlikely to lead to Mr McCann's death within the following year. The chronic degenerative disease of the lungs was significant and material in that, had Mr McCann not suffered from that condition, on the balance of probabilities he would not have died of the chest wall injuries. Mr Large's overall conclusion was that Mr McCann's death arose directly from the injuries which he sustained as a result of the accident.

[9] In the course of his evidence Mr Large was asked to define "the necessary ingredients of the death". He mentioned the road traffic accident and its injuries, Mr McCann's age, and the chronic COPD. He offered the view that in terms of significance, the accident could be attributed 60%, the deceased's age 25%, and 15% to the COPD; though Mr Large immediately described this as "guesswork" and "an alien and arbitrary exercise".

[10] As to the mechanics of the pneumonia and ultimate death, Mr Large described the pneumonia as being caused by the fractures. The reduced ventilation of the lungs set up an infection. It was the COPD and Mr McCann's age which prevented his body from coping with the pneumonia.

[11] In cross-examination Mr Large agreed that the COPD was at an advanced stage and that Mr McCann's lungs were badly damaged. The hospital admissions and other treatment given to Mr McCann in the months and years before his death were discussed with the witness. He agreed that the fracture to the sternum was "not a huge injury". Mr McCann was very vulnerable to any acute injury which might compromise his breathing. It was "not sensibly possible" to attribute percentages to the various factors which led to his death. Mr Large stood by the opinion expressed at paragraph 4.2 of his report, namely that, on a balance of probabilities, if Mr McCann had no chronic underlying medical conditions he would have survived the bodily injuries directly caused by the accident. By balance of probabilities, he meant a more than 50% chance.

[12] Mr Large did not see how the heart condition could have played a role in the death, though he agreed that any significant cardiac condition will increase vulnerability, and have a negative effect on life expectancy. The underlying conditions rendered Mr McCann unsuitable for invasive supported ventilation procedures. His chronic chest condition made him vulnerable to chest infections. Mr Large stood by the view that if Mr McCann had not suffered from COPD, the probability is that he would have survived the accident. That does not exclude the possibility that he would have died without any underlying conditions.

The evidence for the defenders

[13] On behalf of the defenders, Mr Duthie led evidence from Hussein El Shafei, a consultant cardio-thoracic surgeon at Aberdeen Royal Infirmary. Mr El Shafei was responsible for Mr McCann's post-accident treatment. He wrote a report dated 24 November 2006 which described Mr McCann's medical conditions and history. In that report, his comment was as follows:

"The patient had suffered from severe advanced respiratory failure, compounded by cardiac impairment. His condition had been precarious with poor reserve and any adverse event could have precipitated decompensation and death. The presence of pre-existing respiratory and cardiac conditions has in my opinion contributed to the fatal outcome of the accident. The traumatic sternal bone fracture would have added to the respiratory deficiency by an unknown degree. It is difficult to conclude whether the same accident in a patient of the same age who does not have such pre-existing medical conditions would be fatal or not. It appears that the death was not caused solely by the accident. On the other hand, it would be impossible to conclude that the pre-existing medical conditions without this accident would have been fatal within the same timeframe. In my opinion, the accident played the role of a precipitating and accelerating factor which led to further deterioration in the patient's pre-existing morbidity. This combination of the accident and severe morbidity with poor reserve at a relatively old age has ultimately caused his death."

[14] The only material difference between this comment and Mr Large's opinion is the reference to a role played by cardiac impairment. Otherwise the general picture is much the same as that painted by Mr Large. For the purposes of the present action Mr El Shafei produced a further report dated 27 March 2012. In it he states that the cardiac condition was a significant contributory cause of death, though possibly of lesser impact than the respiratory illness. Without the pre-accident morbidities, on the balance of probabilities, the injuries sustained in the accident, would not have resulted in death. The injuries alone were unlikely to be fatal, but might have contributed to the death. The advanced age of the patient would have been an additional independent risk factor. The physical injuries alone were unlikely to have an impact on life expectancy, and were unlikely to produce significant permanent disability.

[15] The patient would have had the same outcome if he had suffered from only pulmonary disease, and not heart disease. The restricted lung function was a necessary ingredient in Mr McCann's death. On its own, COPD is a common cause of death. A younger patient with the same pulmonary and cardiac conditions would be more likely to survive the physical injuries. Such a person would be able to receive more intensive treatment, such as invasive artificial positive pressure ventilation and tracheostomy, which might improve the outcome.

[16] Mr El Shafei's report continues by stating that the degree of injuries sustained by Mr McCann in the accident can be classified as mild. Most patients who sustain such a trauma would survive. There was no evidence of any significant damage to internal organs. This was confirmed at the post-mortem examination. In Mr McCann's case the bad condition of the lungs as a result of COPD, and his heart disease, had reduced his respiratory and cardiac reserves significantly, and thus the mild injuries sustained in the accident proved to be fatal.

[17] The evidence available from both the GP and hospital records indicates that both his respiratory and cardiac conditions were active, especially in the few months prior to his death. There are frequent GP consultations with entries referring to worsening of the condition, recurrent chest infections, deterioration of symptoms, heart failure, increasing medication, etc. In January and March 2006 there were two emergency referrals to out of hours services. There was hospitalisation and intravenous infusion of diuretic therapy in April 2006.

[18] The report continues to the effect that the respiratory and cardiac morbidities can be considered as background conditions, in the sense of circumstances surrounding or leading to an event, but as part of the sequence which led to death. On the other hand, without these pre-accident morbidities death was unlikely to occur, and in this instance they can also be regarded as separate co-existing causes of death. They were an essential part of the sequence of events which led to death. The pre-existing morbidities can be described as diseases. In addition COPD is a degenerative condition in which the lung tissue and airways are damaged. In respect of ischaemic heart disease, after a heart attack the muscle of the heart is replaced by scar tissue, which is a form of degeneration. Both conditions were significant and material in the sequence leading to death. Mr El Shafei's opinion is that the direct cause of death was pneumonia, as reported in the post-mortem examination. He would place the injuries from the accident as the intermediate cause of death, and COPD and heart disease as underlying causes of death. These four conditions and diseases were the factors which led to Mr McCann's death.

[19] In his evidence, Mr El Shafei said that he could remember Mr McCann. He was the consultant in charge of his admission and treatment. Mr McCann was not suitable for invasive intubation because of the overall assessment of his condition. Previously, on at least two occasions, surgery had been abandoned because of his core morbidities, perhaps because of the risk from a general anaesthetic. Mr El Shafei explained that, at the time of the accident, Mr McCann's chest and cardiac conditions were not stable but had been active in the previous few months. He was not a well man. The morbidities were an essential element in his death. That was beyond doubt in respect of the respiratory condition, though the lung and heart conditions inter-relate and should be considered "as a package."

[20] The COPD was of such a severity that, if put under stress, Mr McCann possessed very limited respiratory reserves. This could be from exercise, chest infection, or, as here, from injuries which limited his ability to breathe deeply and to cough. If breathing is restricted through pain, gas exchange of oxygen and carbon dioxide between the air and the blood in the lungs is impaired. If coughing is not effective, infection can lead to pneumonia, which also reduces gas exchange. The blood is not receiving sufficient oxygen and the ability of the lungs to "blow off" carbon dioxide is prejudiced. If there had been no underlying respiratory condition, it is probable that the injuries alone would not have resulted in pneumonia. The heart condition increased the risk of a fatal outcome. It, and the respiratory deficiency, adversely affected the amount of oxygen delivery through the blood circulating around the body. That said, in the absence of respiratory disease, it is probable that the patient would have survived.

[21] Mr El Shafei explained that pneumonia means an inflammation of the lung. The patient had a decreased respiratory reserve and the lung tissue was inflamed. This contributed to the degeneration in the function of the lungs and their ability to deliver oxygen. Mr El Shafei did not consider that it would be sensible to attempt to attribute a percentage to each factor involved in Mr McCann's death. They operated together, each making the other worse. Nonetheless the witness was pressed to say something in this regard, and he opted for 50% to the respiratory condition; 25% for the heart condition; 15% for the accident; and the rest attributable to pneumonia.

[22] Under cross-examination Mr El Shafei explained that in the absence of any heart disease, the heart may have been able to beat for longer. A normal heart will be more able to withstand stresses such as a lack of oxygen or a rise in carbon dioxide levels. Mr El Shafei sees injuries of the kind sustained in this road accident all the time. Very few cases result in death.

[23] The final witness for the defenders was Dr James Grieve, the author of the post-mortem report. He spoke to that report. He explained that pneumonia impedes the gas exchange function of the lungs, leading to a reduction in oxygen and an increase in carbon dioxide levels in the blood. Emphasising that he is a pathologist, Dr Grieve expressed the view that, but for the pre-existing morbidities, Mr McCann would have survived. He considered it unrealistic to attempt to separate the contribution of the heart and lung conditions. The lungs and heart "go together" - they "co-exist".

[24] Under cross-examination Dr Grieve explained that pneumonia was the proximate cause of Mr McCann's death. It was suggested that the fractured ribs and sternum were the underlying cause of death, but he disagreed. He did not give an underlying cause of death when completing the post-mortem report. It was put to him that he would regard the COPD and the heart condition as antecedent causes of death. Again he disagreed. He would describe the ischaemic heart disease as a significant condition. When being cross-examined as to the terms of the death certificate, Dr Grieve explained that much of the structure of such certificates is aimed at facilitating the compilation of statistics. He did not see a direct relationship between the fractured sternum and pneumonia. However it was useful to know how often such fractures occur in road traffic accidents. His view was that all the factors mentioned in the post-mortem report had a role to play. "We are all manipulated into boxes in modern Britain, boxes which require to be ticked." It was the fractured sternum which gave the patient the "temporal and spatial locus for his death - I accept that". He stressed that he was speaking as a pathologist, not a clinician.

Discussion and decision - including reference to the submissions of counsel

[25] It is unnecessary to dwell on the differences, such as they are, between the approach of Mr Large and Mr El Shafei. Even on Mr Large's evidence, the pursuers' claim fails. From time to time the witnesses were asked to express views on issues which are truly for the court to determine, all on the understanding that it was difficult to operate a strict demarcation, and, in any event, the court would not be bound by such answers.

[26] It is clear that, on their own, the bodily injuries caused by the accident would not have killed Mr McCann. The defenders are obliged to pay the appropriate benefit only if Mr McCann died because those injuries were "the sole cause" of his death. They were not the sole cause of his death. According to Mr Large, but for the pre-existing COPD, Mr McCann would have survived. It was his pre-existing medical condition which caused the fractures to lead to his demise. There were at least two active causes of Mr McCann's death. It follows that the defenders are not obliged to pay out under the policy.

[27] In his submissions Mr Summers contended that the purpose of the phrase "sole cause" in the policy (see quotation at paragraph one) was to prevent liability where the bodily injury combines with other effects caused by the physical insult, for example psychological injury or disease or illness, and not with any underlying ill health of the insured. I find this argument unpersuasive. (In any event, arguably, it would exclude liability in this case, given the role of the pneumonia.) The natural and ordinary interpretation of the words used in the relevant provision in the policy is that the death must be attributable only to the injuries directly caused by the accident. Thus, for example, if an insured person dies because of catastrophic injuries directly resulting from an accident, it is of no consequence if the death was hastened a little because of some pre-existing vulnerability. It is a very different matter if, as here, the direct consequences of the accident are relatively mild, and certainly, in themselves, non-fatal. Thereafter, even on Mr Large's evidence, the fatal outcome depended upon the contribution made by the serious degenerative damage to Mr McCann's respiratory system.

[28] It is tempting to say that because the death would not have occurred but for the accident, the direct consequences of the accident are the sole cause of the death. However, when it is understood, as Mr Large and the other witnesses made plain, that in themselves they would not have killed Mr McCann, they cannot sensibly be described as the sole cause of his death. On Mr Large's evidence, the COPD was a cause of the death. It meant that Mr McCann succumbed to the pneumonia. As per paragraph 4.2 of his report, it is not a question of Mr McCann being a 77 year old man. If he had been free of his lung condition, the probability is that he would have survived.

[29] It is true that absent the fractures, Mr McCann would have lived. The fractures are also a cause of death. Neither the fractures, nor the COPD, can be described as the sole cause of death. They operated together. Mr Summers sought to equiparate "sole cause" with "precipitating cause". This was helpful to his argument in that clearly the accident and its direct consequences upset the likelihood that Mr McCann would have lived beyond July 2006. But this is to supplant "precipitating cause" for the wording used in the relevant clause. I must determine the issue on the basis of the terms of the policy.

[30] Mr Summers emphasised that the accident was the sole cause of the fractures, which he described as "the bodily injuries" in terms of the policy. No doubt they were, but the key question is - were they the sole cause of death? Disease and degenerative processes are excluded from the definition of bodily injury, but they are not excluded from the scope of causes of death. In my view, in the whole circumstances it would be unreal to describe the fractures as the sole cause of Mr McCann's death. No doubt often a death can be attributed to a number of factors, but the consequences of an accident will predominate. Mr Summer hypothesised someone who is in a weakened condition because of AIDS or bronchitis. However, where the accidental injuries are non-fatal in themselves, in my view it is unlikely that a "sole cause" policy will impose a liability to pay death benefit.

[31] I consider all of this to be broadly in line with the reasoning adopted by Lord Hodge at paragraphs 26/8 of his decision (cited earlier). He referred to the analysis of the Supreme Court of Carolina in Penn v Standard Life Insurance Co (1912) 76 SE 262, to which MacGillivray refers at paragraph 25.046, in which it is stated:

"When at the time of the accident there was an existing disease which, cooperating with the accident, resulted in the injury or death, the accident cannot be considered as the sole cause or as the cause independent of all other causes."

In my view this sums up the position in the present case.

[32] Mr Summers relied heavily upon the decision of the Privy Council, on appeal from the Supreme Court of Ontario, in Fidelity and Casualty Company of New York v Mitchell [1917] AC 592. The relevant term in the accident policy was:

"The Fidelity and Casualty Company of New York does hereby ensure the person named in statement A of the schedule of warranties against -

(1) bodily injury sustained during the term of 1 year from noon standard time of the day that this policy is dated, through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane) resulting directly, independently and exclusively of all other causes in -

(a) immediate, continuous and total disability that prevents the assured from performing any and every kind of duty pertaining to his occupation."

The plaintiff was travelling in a railway sleeper. He was thrown out of his berth onto the floor. He was rendered insensible and was afterwards found to have severely sprained his wrist. The wrist did not improve, and came to prevent him from using his hand so as to perform necessary operations as part of his employment as a throat, ear and eye specialist. At proof it was established that, while there had been no active tuberculosis in the plaintiff's arm, tuberculosis was present in his system in a latent form which would have remained harmless had it not been for the accident. There was no positive evidence of an actual tubercular condition of the wrist; but a sprain, however severe, would normally get better in some six months or so, and would not settle down into a chronic condition. In defence of the claim it was stated that the plaintiff's injury, though sustained through accidental means, did not independently, and exclusively of all other causes, result in immediate, continuous and total disability. Benefit had been paid for a reasonable period of time, but it was urged by the appellants that the continuing disability was not solely caused by the accident, the other cause being the tuberculosis condition, without which there would not have been continuous disability.

[33] The judgment of their Lordships was delivered by Lord Dunedin, who described the point as "narrow and not without difficulty". In the event their Lordships agreed with the judgment of Middleton J, confirmed unanimously by the judges of the Court of Appeal, namely:

"This diseased condition is not an independent and outside cause, but it is a consequence and effect of the accident."

It was confirmed that the key question in the case (as in the present action) was the construction of the relevant clause in the policy. Lord Dunedin continued:

"What is insured against is, first, bodily injury sustained through accidental means. As to that, there is no difficulty. The wrist has been injured by an accidental fall. Then, secondly, this bodily injury must result in immediate continuous and total disability that prevents the assured, &c. This, also, is clear. The wrist was disabled at the moment of the fall, and has been disabled ever since. The point as to preventing the assured from doing work has been already dealt with. But then comes the third condition, which is the critical point. This bodily injury, sustained through accidental means, and resulting in disability, must so result 'directly, independently and exclusively of all other causes.' The expression 'other causes' postulates a cause already specified. The word 'cause' has not, so far, been used in the sentence, and it must therefore be found in the words 'accidental means.' Therefore there must be independency between cause one (the accident) and cause two, whatever that may be. But in this case, on the view of the facts taken by both courts - with which their Lordships agree, and which in any case they would be slow to disturb - there is no independency between the alleged second cause (the tuberculous state) and the first cause (the accident). Prior to the accident there was only potestative tuberculous tendency; after it, and owing to it, there was a tuberculous condition. In other words, the accident had a double effect - it sprained the tendons and it induced the tuberculous condition. These two things acted together, and were the reason of the continuing disability; but while they are both ingredients of the disabled condition, there has been and is, on the true construction of the policy, only one cause, namely the accident."

[34] In my opinion the relevant facts in the Fidelity case were materially different from those in the present. Fidelity was decided upon the basis that the tuberculous condition which prolonged the disability was caused by the accident. The accident had, as it was put, "a double effect." In the present action, it cannot be said that the accident caused the diseased lung condition, nor the damage to the heart. Focusing for the moment only on Mr McCann's lung damage, even on the Privy Council's approach in Fidelity, that damage was an independent contributing cause of his death, which would negative recovery under the policy. It was much more than some pre-existing vulnerability or tendency brought into operative effect by the direct consequences of the accident. It follows that the decision of the Privy Council is of no assistance to the pursuers in the present action. The COPD (and the heart disease) were not latent conditions in the sense explained in Fidelity.

[35] In his submissions on behalf of the defenders, Mr Duthie emphasised that COPD is both a disease and a degenerative process, which materially limits the sufferer's life expectancy. Mr McCann had longstanding and advanced COPD, which caused recurrent chest infections and pneumonia in the years and months leading up to his death. Mr Duthie also presented various submissions as to Mr McCann's heart disease; submissions which I consider are made out on the evidence. I was persuaded by the evidence from Mr El Shafei and Dr Grieve to the general effect that one cannot sensibly separate the respiratory and cardiac conditions when considering the contribution of the morbidities to Mr McCann's death. However the controversy, such as it was, between Mr Large and the other witnesses on this issue, is not critical to the proper resolution of the case. I agree with Mr Duthie's submission that "the facts on which the experts do agree are sufficient to conclude that the morbidities amount to a separate co-existing cause of death."

[36] If it had been necessary to choose in respect of the points where the witnesses differed, for the reasons given by Mr Duthie in chapter 7 of his written submissions, I would have preferred the evidence of Mr El Shafei and Dr Grieve. Thus, for example, I would not be prepared to categorise the morbidities as "mere background conditions", if that is intended as in contra-distinction to them playing a contributory role in the death. I also agree with Mr Duthie that his submissions gain support from the decisions in Jason v Batten (1930) Limited [1969] Lloyds Rep 281, and Southampton Leisure Holdings Plc v Avon Insurance Plc and others [2004] EWHC 571 (QB). I would particularly associate myself with the discussion and reasoning of Fisher J in the former case at pages 290/291. I shall sustain the second and third pleas-in-law for the defenders; repel the pleas-in-law for the pursuers; and assoilzie the defenders.