Pass v Gerling Australia Insurance Company Pty Ltd
[2011] WASCA 93
•13 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PASS -v- GERLING AUSTRALIA INSURANCE COMPANY PTY LTD [2011] WASCA 93
CORAM: PULLIN JA
NEWNES JA
MAZZA J
HEARD: 18 AUGUST 2010
DELIVERED : 13 APRIL 2011
FILE NO/S: CACV 146 of 2009
BETWEEN: AMANDA MARIA PASS as executor of the estate of ADAM JEFFERSON PASS (Dec)
Appellant
AND
GERLING AUSTRALIA INSURANCE COMPANY PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MARTINO DCJ
Citation :AMANDA MARIA PASS as Executor of the Estate of ADAM JEFFERSON PASS (DECEASED) -v- GERLING AUSTRALIA INSURANCE COMPANY PTY LIMITED [2009] WADC 173
File No :CIV 848 of 2003
Catchwords:
Insurance - Personal accident - Whether death caused by thrombosis of a coronary artery was a death caused by bodily injury resulting from accident
Legislation:
Commonwealth Employees' Compensation Act 1930-1956 (Cth), s 9A(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S A Millman
Respondent: Mr P E Jarman
Solicitors:
Appellant: Slater & Gordon
Respondent: Jarman McKenna
Case(s) referred to in judgment(s):
Amanda Maria Pass as Executor of the Estate of Adam Jefferson Pass (Deceased) v Gerling Australia Insurance Company Pty Limited [2009] WADC 173
Australian Casualty Co Ltd v Federico (1986) 160 CLR 513
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASCA 131
Commonwealth v Hornsby (1960) 103 CLR 588
Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
PULLIN JA: I agree with Mazza J.
NEWNES JA: I agree with Mazza J.
MAZZA J:
Introduction
On the morning of 17 April 2000, Adam Jefferson Pass collapsed at Changi Airport in Singapore. He was at the airport in connection with his work. He was immediately taken to a nearby hospital but was pronounced dead shortly after his arrival. The cause of death as described in the autopsy report and death certificate was thrombosis of the left anterior descending coronary artery.
Mr Pass was an insured person under a Group Personal Accident and Corporate Travel Plan (the policy) underwritten by the respondent. His widow, as the executor of his estate (the appellant), claimed payment of $250,000 under the personal accident section of the policy. The respondent rejected the claim.
The appellant sued the respondent in the District Court of Western Australia. His Honour Martino DCJ (as he then was) dismissed the claim: Amanda Maria Pass as Executor of the Estate of Adam Jefferson Pass (Deceased) v Gerling Australia Insurance Company Pty Limited [2009] WADC 173 (Pass v Gerling).
The appellant now appeals to this court alleging that Martino DCJ made errors of law. The respondent denies that his Honour made the alleged errors of law and has filed a notice of contention seeking to uphold his Honour's decision on grounds other than those relied upon by his Honour.
The key issue raised in this appeal is whether Mr Pass' death was an injury as defined by the policy.
His Honour's findings of fact
Mr Pass was born on 19 July 1963. He was, at the time of his death, a few months way from his 37th birthday. He was employed by Coflexip Stena Offshore Asia Pacific Pty Ltd (Coflexip) as a pilot technician.
On 22 and 27 February 2000, Mr Pass presented at the emergency department of Royal Perth Hospital complaining of sharp chest pains. On
each occasion, an ECG was performed which was normal and he was discharged without hospitalisation.
On 8 March 2000, he consulted his general practitioner. Mr Pass did not complain of chest pain on that day.
Just prior to his collapse, Mr Pass was walking and talking normally. No external event occurred which could have caused the thrombosis: Pass v Gerling [30] ‑ [31]. Accordingly, this was not a case where any aspect of Mr Pass' employment contributed to or caused his fatal thrombosis.
His Honour heard evidence from two consultant forensic pathologists, each of whom provided written reports that were tendered at trial. Dr Richard Collins gave evidence on behalf of the appellant, and Associate Professor Johan Duflou on behalf of the respondent.
His Honour noted that there was very little, if any, difference between these witnesses as to the physical process which led to Mr Pass' death: Pass v Gerling [40].
At the time of his death, Mr Pass had severe coronary atherosclerosis. That condition had existed for many years and had been progressing over that time.
Coronary atherosclerosis is a natural disease process in which there is an accumulation of plaque in the wall of the coronary arteries, with consequent narrowing of the vessel lumen. There was atherosclerotic narrowing of all Mr Pass' major coronary arteries. His left anterior descending coronary artery was almost completely occluded. Dr Collins estimated that the lumen in this artery was approximately 95% blocked: Dr Collins' report, 28 August 2001, 2.
Over time, small blood vessels had infiltrated the atherosclerotic plaque in Mr Pass' arteries. For reasons which his Honour was unable to determine, these blood vessels ruptured and haemorrhaged. A thrombus formed in the left anterior descending coronary artery, which blocked that vessel and caused a fatal myocardial infarction: Pass v Gerling [40] ‑ [43].
His Honour found that the presence of the atherosclerotic plaque was a necessary pre‑condition for the development of the thrombus, but the development of the thrombus was not inevitable. Due to his severe coronary atherosclerosis, Mr Pass had a higher than normal likelihood of developing thrombosis, and the development of thrombosis in a person with severe coronary atherosclerosis such as Mr Pass is very common: Pass v Gerling [41]. Both specialists were of the opinion that in February 2000, Mr Pass had suffered a myocardial infarction, although that had not been diagnosed when he presented at Royal Perth Hospital.
The insurance policy
The policy taken out by Coflexip provided cover to its officers, employees and contractors against a variety of events while working or travelling away from home, and particularly in respect of events occurring beyond the territorial limits of Australia. The events covered by the policy were divided into twelve sections. Mr Pass was nominated by Coflexip as an expatriate employee under the policy. As such, he was entitled to be covered under some but not all of these sections. He was entitled to cover under section 1 of the policy.
Section 1 is entitled 'personal accident'. It is the section under which the appellant claimed.
The extent of the cover offered in this section is as follows:
If an Insured Person suffers an Injury whilst engaged on Insured Travel during the Period of Insurance and as a direct result and within twelve (12) months of the date of the Injury suffers from any of the Insured Events set out in the Table of Benefits, We will pay the Compensation stated in that Table.
There is no dispute that at the time of his death: Mr Pass was an insured person engaged on insured travel; that his death occurred within 12 months of the date of the injury; and that if he suffered an injury, his death was a direct result of that injury.
One of the items in the table of benefits is the death of the insured person. The amount of compensation payable in the event of death is $250,000.
For the purposes of the section, 'injury' is defined as follows:
INJURY means bodily Injury resulting from an accident that occurs fortuitously to the Insured Person during the Period of Insurance and results in any of the Insured Events specified in the Table of Benefits within twelve (12) 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 pleadings
The pleadings were basic.
The statement of claim pleaded Mr Pass' death, the existence of the policy without referring in detail to its terms, the making of the claim and its subsequent rejection. Neither the statement of claim nor the appellant's further and better particulars of claim specified the event said to be the accident or the bodily injury which resulted from that accident.
The respondent's amended defence denied that Mr Pass had suffered a bodily injury resulting from an accident and pleaded that the exclusions in (a) and (b) of the definition of 'injury' applied.
It is evident, having regard to the closing submissions, that the appellant's case at trial was that the accident was the rupture and haemorrhage of the blood vessels within the atherosclerotic plaque (the rupture), and the bodily injury which resulted was the occlusion of the left descending coronary artery which led to the myocardial infarction: ts 65, 73, 89, 95 ‑ 96.
The respondent's case was that what happened to Mr Pass was the culmination of his severe coronary atherosclerosis and was not an injury as defined in the policy. In any event, it was argued both of the exclusions in the definition of 'injury' applied.
Martino DCJ's interpretation of the policy
Martino DCJ correctly approached the task of interpreting the policy in accordance with what was said by Wilson, Deane and Dawson JJ in Australian Casualty Co Ltd v Federico (1986) 160 CLR 513, 525. That approach requires a consideration of what the words of the policy conveyed, as a matter of contemporary language read in the context of the whole policy, to a reasonable non‑expert: Pass v Gerling [49].
His Honour noted that the definition of 'injury' in the policy contained two sentences. The first sentence contained a statement of what the word 'injury' meant. The second sentence specified two types of matters that are not included in the meaning of 'injury'. His Honour concluded that for an event to be an injury, it must be a bodily injury resulting from an accident that occurs fortuitously. If the event comes within this definition, the matters contained in the second sentence are to be considered: Pass v Gerling [50].
His Honour held that bodily injury means, in its normal usage, harm or damage done to the body or a part of the body: Pass v Gerling [54].
His Honour held that an accident is an unexpected and unintended mishap, which need not be external to the body. An accident could be an internal event and does not have to be violent, external or visible: Pass v Gerling [56] ‑ [57]. His Honour considered that the adverb 'fortuitously' added nothing to the words 'resulting from an accident': Pass v Gerling [58].
His Honour considered that to result from an accident, the bodily injury must have been caused by that accident: Pass v Gerling [55].
His Honour then turned his attention to the two exclusions. His Honour interpreted the first exclusion to apply to consequences of an injury which a reasonable, ordinary member of the public would regard as being a disease: Pass v Gerling [59]. His Honour interpreted the second exclusion to mean that the aggravation of an injury that already existed is not an injury within the meaning of the definition, unless that aggravation is itself caused by a separate and distinct unexpected and unintended mishap: Pass v Gerling [60].
There is no ground of appeal and nothing in the notice of contention which alleges that his Honour erred as to his construction of the language used in the policy. As a result, I will accept that such construction is correct.
Having interpreted the policy, his Honour proceeded to answer the critical question in this case - whether Mr Pass' death was an injury as defined in the policy. It is in this process that his Honour is said to have erred.
His Honour found that the rupture was not an accident. It is convenient to set out in full his Honour's reasons for arriving at this conclusion:
The thrombus formed because fine blood vessels in the atherosclerotic plaque in Mr Pass' coronary artery ruptured. The [appellant's] case is that the intraplaque haemorrhage was an accident. The rupture of those blood vessels was unexpected and unintended. It could not have occurred unless Mr Pass suffered coronary atherosclerosis. Because he had severe coronary atherosclerosis Mr Pass had a higher than normal likelihood of developing thrombosis and the development of thrombosis in a person with his level of severe coronary atherosclerosis is common. The rupture of the blood vessels was nevertheless unexpected – it was not expected by anyone – and it was unintended.
However it does not follow automatically that because the rupture and bleeding of the blood vessels were both unexpected and unintended the event was an accident. It was certainly an injury. It was damage done to a part of Mr Pass' body. For an injury to be caused by an accident there must be an accident which causes injury, it is not enough that the injury may be described as accidental – Federico per Gibbs CJ at p 521.
In Federico Wilson, Deane and Dawson JJ at pp 527-528 gave examples of an accident – it may occur independently of any act of the person injured such as an explosion of a boiler, the collapse of a building or the failure of brakes of a motor vehicle. It may involve an involuntary act of the injured person such as slipping and falling or dropping a heavy object on one’s foot. It may represent an unintended and unexpected characteristic or consequence of an intended act such as the application of excessive force by holding a fragile object too tightly so that it is unintentionally broken or creating internal pressure within a person's body by the exertion involved in lifting, pushing or pulling which unintentionally and unexpectedly causes damage to the body, such as straining a muscle or bursting a blood vessel. Of this last example their Honours said:
'If the muscle or blood vessel be already in an unsound condition, there may be room for argument about whether the straining of the muscle or the breaking of the blood vessel is properly to be seen as having been caused by the pre-existing condition rather than by the unintentional and unexpected excessiveness of the pressure created by the exertion. If it was in a sound condition, however, it will be plain that the damage to muscle or blood vessel was caused by the unintentional and unexpected excessiveness of the pressure. As a matter of ordinary language, the injury in such a case is caused by accident or mishap.'
I am unable to conclude what caused the blood vessels to rupture. I am unable to conclude that it was the result of any external or internal event or activity. It would not, as a matter of ordinary language be described as an accident. In my view neither the rupture of the blood vessels nor the haemorrhaging that followed it, alone or in combination, constitute an accident.
Counsel for the [appellant] did not submit that any other event constituted an accident. I can find no other event that constituted an accident. I find that there was no accident. The [appellant's] case must therefore fail. In case I am wrong in that conclusion I will consider the application of the remaining provisions of the definition of injury in the policy [62] ‑ [66].
Having found that what occurred to Mr Pass was not an injury as defined in the first sentence of the definition, he went on to consider whether any of the exclusions applied. His Honour found that they did not. His reasons for doing so are as follows:
Mr Pass died because his left anterior descending coronary artery was blocked by a thrombus. This blockage caused the death of heart tissue. This resulted in Mr Pass dying. The thrombus was formed as a result of the rupture of the blood vessels in the atherosclerotic plaque. The bleeding from those blood vessels resulted in the development of the thrombus. The death of the heart tissue was damage done to a part of Mr Pass' body. It was an injury. That injury resulted from the rupture of the blood vessels. If the rupture of the blood vessels were an accident the death of the heart tissue would have been an injury resulting from an accident.
None of Mr Pass' death, the myocardial infarction, the formation of the thrombus and the blocking of the artery by the thrombus is ordinarily described as being a disease. The first exclusion to the definition of an injury would not apply.
In February 2000 Mr Pass had suffered a myocardial infarction. The myocardial infarction he suffered on 17 April 2000 was a separate myocardial infarction. None of Mr Pass' death, the myocardial infarction, the formation of the thrombus and the blocking of the artery by the thrombus was an aggravation of a pre–existing injury. The second exclusion to the definition of an injury would not apply [67] ‑ [69].
In the penultimate paragraph of his Honour's reasons, he referred to Commonwealth v Hornsby (1960) 103 CLR 588. His Honour said:
In Commonwealth v Hornsby (1960) 103 CLR 588 the High Court held that a person who had suffered stroke as a result of a thrombus in a blood vessel had not suffered personal injury by accident and so was not entitled to worker's compensation. The stroke was held to be a disease, not a personal injury by accident because no particular incident or activity of the worker accelerated or contributed to the occlusion. However more recent decisions of the High Court such as Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 and Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 now make clear that internal damage to the cardio-vascular system can constitute an injury [70].
His Honour expressed his conclusion as follows:
I conclude that Mr Pass suffered bodily injury, that the exclusions to the definition of injury in the policy do not apply and that the injury resulted in Mr Pass' death. However the bodily injury did not result from an accident. The [appellant's] claim does not succeed [71].
The grounds of appeal and notice of contention
The grounds of appeal are hardly illuminating. Originally there were three grounds, however, at the outset of the appeal, the appellant's counsel stated that the appellant wished to pursue only two grounds of appeal, which were expressed in the appellant's case as follows:
The trial judge erred in law in having made the appropriate findings of fact he[:]
1.failed to apply the correct legal test;
2.…
3.failed to provide adequate reasons for decision as to why he applied a particular test.
It is apparent from the appellant's written and oral submissions before this court that the appellant' alleges his Honour erred in law in two respects. First, in finding that the rupture was not an accident. Second, that his Honour's reasons for finding that the rupture was not an accident were inadequate. The respondent understood that the appeal raised these alleged errors.
The respondent's notice of contention sought to uphold his Honour's decision on essentially two grounds. The first, that Mr Pass' death was a personal injury that resulted from the autogenous progression of his underlying heart disease and not any accident. Second, his Honour should have found that both of the exclusions in the definition of 'injury' were satisfied.
Were his Honour's reasons inadequate?
It is convenient to deal with this ground first. It can be disposed of shortly.
The obligation to give reasons is a function of due process and therefore of justice: Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381. Fairness requires that the parties should know why they have won or lost: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26]. Where there is a right of appeal, the reasons must be sufficient to give effect to that right: Mount Lawley Pty Ltd v Western Australian Planning Commission [27]. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 [73].
A court examining reasons for decision must have regard to the reasons as a whole. The court may also have regard to what can be legitimately inferred from the reasons: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 443; and Bennett v Carruthers [2010] WASCA 131 [28].
His Honour construed 'injury' to mean a bodily injury caused by an accident. I understand his Honour to mean an accident separate and distinct from the injury. His Honour found that there was an injury which caused Mr Pass' death, being the death of the heart tissue caused by the thrombus blocking the artery: Pass v Gerling [67]. However, he did not accept the appellant's case that the rupture was an accident, even though it was unexpected and unintended. His Honour found that the rupture would not have occurred, were it not for Mr Pass' coronary atherosclerosis. His Honour found that event would not, in ordinary language, be characterised as an accident: Pass v Gerling [65]. Rather, it was an injury. This can be seen from [63] of his Honour's reasons, where he said, in the context of the rupture and bleeding of the blood vessels:
It was certainly an injury. It was damage done to a part of Mr Pass' body.
As I read his Honour's reasons, he sought to support these conclusions by the reference to the judgment of Wilson, Deane and Dawson JJ in Australian Casualty Co Ltd v Federico (527 ‑ 528), where their Honours gave various examples of accidents which cause injury. Those examples include events which may be external or internal to the body. None of those examples are the consequences of a disease process.
His Honour observed that apart from the rupture, no other event was alleged by the appellant to be an accident. In the absence of any accident, and having regard to the definition in the policy of 'injury', his Honour found that the appellant's case failed: Pass v Gerling [66].
His Honour did not deal with the respondent's submission at trial that Mr Pass' death was a natural progression of a disease. I assume his Honour regarded this as unnecessary because of his finding that there was no accident. His Honour made only brief reference to Commonwealth v Hornsby in the penultimate paragraph of his reasons, after he had found there was no accident.
Leaving aside the question of whether his Honour's reasoning was correct, the submission that his Honour's reasons are inadequate cannot be sustained. The reasons disclose the intellectual process which led his Honour to find against the appellant. The appellant is in a position to analyse that intellectual process and mount an argument that it was erroneous. The reasons plainly give effect to the appellant's right of appeal.
This ground has not been made out and must be dismissed.
Did his Honour err in finding that the rupture was not an accident?
The appellant's case is that his Honour erred in finding that the rupture was not an accident. The argument is simple. His Honour correctly defined an accident to mean an unforeseen and unintended mishap. He found the rupture to be such an event. Having made that finding, the only correct characterisation of the rupture was that it was an accident. Implicitly, the appellant's case is that whether the accident also amounted to an injury is irrelevant.
The appellant submits that the rupture was an accident that caused a bodily injury, which in turn led to Mr Pass' death. Accordingly, the death resulted from an injury as defined in the policy. The appellant, understandably, does not dispute the conclusion that neither of the exclusions applied. Accordingly, the appellant is entitled to be paid the death benefit under the policy.
The respondent's case is also simple. Its case is that the injury and death are the culmination of a natural disease process and that no reasonable non‑expert would describe what happened to Mr Pass in terms of accident or injury. The respondent submitted that a reasonable non-expert would characterise what happened to Mr Pass as death by heart disease. In any event, what occurred came within both exclusions. It is submitted that the consequences of the injury, namely the fatal myocardial infarction, was a consequence which would ordinarily be described as a disease. Further, it was an aggravation of a pre‑existing injury, namely the atherosclerotic disease.
The respondent placed great reliance, in support of its submission that what occurred was a natural disease process and not personal injury caused by accident, on the High Court's decision in Commonwealth v Hornsby.
The facts of this case have much in common with Commonwealth v Hornsby. Mr Hornsby was an employee of the Commonwealth Bank. He collapsed while on public transport on his way to work. He was found to have suffered a stroke due to a thrombosis which occurred in an atheromatous blood vessel in his brain. The blood vessels in his brain had been affected by atheroma for 'some time' prior to his collapse. Although the injury suffered by Mr Hornsby was a stroke, it involved the same or at least a very similar mechanism to that which occurred to Mr Pass' heart. The issue for determination was whether what occurred was an 'injury by accident' within the meaning of s 9A(1) of the Commonwealth Employees' Compensation Act 1930 ‑ 1956 (Cth) (Commonwealth Act).
Dixon CJ found that what occurred to Mr Hornsby was not an injury by accident. He said at 594:
My opinion has fluctuated upon the question whether these factors are enough to make it right to characterize the event as injury by accident within the meaning that has been attached to that expression. But after full consideration I have reached the conclusion that the processes leading to Hornsby's 'injury' cannot be regarded otherwise than as a gradual development of a disease terminating in conformity with the character of the disease in the formation, perhaps rapid, of a thrombus. It too closely resembles physiologically and pathologically the course and incidents of the occlusion of an atheromatous sclerotic coronary artery and its consequences.
Fullagar J noted that under workers' compensation Acts, such as the Commonwealth Act, which do not expressly equate death or incapacity resulting from disease to death or incapacity resulting from traumatic injury, it is generally true that a claimant who proves that death or incapacity resulted from a disease or the development of a disease, does not thereby establish that he or she has suffered 'personal injury by accident'. His Honour, however, noted that this general statement required qualification because the words used in the statute 'injury by accident' had received an extended meaning in a large number of cases. His Honour considered that those cases fell into three classes. The first class of cases is where a disease has been actually contracted through exposure to infection through a worker's employment. The second class is constituted by cases where there is an actual internal physical injury, such as the rupture of an aneurism or of an oesophagus. The third class of cases is where death or incapacity results from the development or culmination of a pre‑existing and progressive morbid physical condition, in which the final occurrence which results in death or incapacity is commonly referred to as a 'sudden physiological change': Commonwealth v Hornsby (596 ‑ 597).
Fullagar J described the first and third classes as cases of disease. He characterised Mr Hornsby's case as falling within the third class of cases. At 597, Fullagar J said:
If, as in Kellaway v Broken Hill South Ltd (1944) 44 SR (NSW) 210; 61 WN 83 the arterial disease and the thrombosis or other occlusion in which it culminated were 'autogenous', and no particular incident or activity of the worker accelerated or contributed to the occlusion, it cannot be said that there was any personal injury by accident.
Taylor J said, at 601:
[D]isablement as a result solely of the natural progression of disease is not personal injury by accident within the meaning of that Act.
Windeyer J said, at 608:
[A]n injury or incapacity that is an ordinary result of the progress of a disease according to its ordinary course is not, I think, an accident. A usual consequence or the normal climax of a progressive malady does not become an accident because it manifests itself suddenly and, to the patient, unexpectedly.
Menzies J dissented. He held that the stroke occurred as a result of a definite physiological change for the worse while Mr Hornsby was on his way to work. He would have characterised that sudden change as 'personal injury by accident'.
The respondent pointed to the fact that Mr Hornsby, like Mr Pass, suffered from atherosclerosis, which produced a thrombus that led to an injury. Each of the majority of the High Court held that such an event was not an injury by accident because it was the culmination of a gradual development of a disease which, as Dixon CJ put it, terminated 'in conformity with the character of the disease in the formation, perhaps rapid, of a thrombus'.
Counsel for the appellant understood that Commonwealth v Hornsby stood as a potentially considerable barrier to his case. Initially, he sought to deal with it by submitting that there was, in truth, no ratio decidendi in the case. However, later in oral submissions, counsel conceded that there was a ratio and then sought to distinguish the case on the facts: appeal ts 24.
The appellant's counsel attempted to distinguish the case on two grounds. First, counsel submitted that in Commonwealth v Hornsby, Mr Hornsby's thrombus was an inevitable progression of his condition, while in the present case the formation of the thrombus was held by his Honour not to be inevitable.
In my opinion, the premise of this submission has not been established. There is no clear statement in the facts of Commonwealth v Hornsby that the development of the thrombus which afflicted Mr Hornsby was inevitable. There is a reference in Menzies J's dissenting judgment to a contention made by the appellant which refers to the inevitable progression of the respondent's heart disease, but the discussions in each of the majority judgments concern the gradual development or natural progression or ordinary result of Mr Hornsby's disease. The language used in those judgments is not the language of inevitability. In any event, I do not think that it matters whether the development of a thrombus was common, rather than inevitable. This is because the event is, in any case, the product of the underlying disease.
The second point of distinction raised by the appellant's counsel is that the relevant terms of the policy ('bodily Injury resulting from an accident') are different to the terms of the Commonwealth Act that were construed in Commonwealth v Hornsby ('injury by accident').
I recognise the differences between the definition of 'injury' in the policy compared to the provisions of the Commonwealth Act. The differences which the appellant's counsel have highlighted plainly exist. Those differences are sufficient to enable me to conclude that I am not bound to follow Commonwealth v Hornsby. The policy must be construed having regard to its language. However, in my opinion, the reasoning in Commonwealth v Hornsby provides some assistance in deciding the ordinary meaning of 'bodily Injury resulting from an accident' as contained in the policy.
In my opinion, his Honour's decision that the rupture was not an accident is correct. As a matter of ordinary language, that event was not an accident. Mr Pass had suffered for many years from severe coronary atherosclerosis, a progressive illness. He had a higher than normal likelihood of developing thrombosis. His Honour found that the development of thrombosis in a person such as Mr Pass was 'common' (Pass v Gerling [62]), or 'very common': Pass v Gerling [61].
The rupture caused the thrombosis to occur. This process was a natural and ordinary progression of his disease. There is nothing on the evidence to show that it was brought on by anything other than the disease's autogenous process.
His Honour found that the development of the thrombus was not inevitable and the rupture was unexpected, but that does not mean that it was an accident. The observations of Windeyer J in Commonwealth v Hornsby are apt in this regard. The usual consequence of a progressive illness, when it occurs suddenly and unexpectedly to the person who suffers from the disease, is not an accident. In my opinion, an ordinary non‑expert would characterise the rupture as part and parcel of Mr Pass' long‑standing severe coronary atherosclerosis.
I would go further than his Honour. In my opinion, an ordinary non‑expert would characterise the entire process, including the rupture, the formation of the thrombus, the occlusion of the artery, the acute myocardial infarction and Mr Pass' death, as a disease process and not a bodily injury resulting from an accident.
For these reasons, this ground of appeal fails.
However, if I am wrong in my conclusion that the rupture was not an accident, I would uphold the ground of the respondent's notice of contention relating to exclusion (a). On this point, his Honour fell into error.
His Honour found that the injury suffered by Mr Pass was the death of the heart tissue. The consequences of that were an acute myocardial infarction, heart failure and death. That process would ordinarily be described, accepting as I do his Honour's conclusion that the word 'ordinarily' refers to descriptions in ordinary conversations not involving medical experts, as a consequence of a disease, namely Mr Pass' severe coronary atherosclerosis. His Honour's reasoning, in relation to his finding that the first exclusion to the definition of an injury would not apply, is brief. He said:
None of Mr Pass' death, the myocardial infarction, the formation of the thrombus and the blocking of the artery by the thrombus is ordinarily described as being a disease [68].
I respectfully disagree. As I have already stated, the consequence of the blocking of the artery is a consequence of Mr Pass' severe coronary atherosclerosis. It would, in my view, be ordinarily described as a disease. Indeed, it is difficult to imagine how else it would be described.
I agree that the second exclusion of the definition of an injury would not apply.
The second exclusion in the policy speaks of an aggravation of a pre‑existing injury. It does not speak of the aggravation of a pre‑existing disease. The injury which led to Mr Pass' death was the death of the heart tissue. While the expert evidence was that Mr Pass had suffered myocardial infarctions in February 2000, no expert testified that what occurred on 17 April 2000 was an aggravation of those injuries.
Conclusion
The appellant's grounds of appeal have not been made out. I would dismiss the appeal.
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