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Accident Compensation Cases

Groves v AMP Fire & General Insurance Co (NZ) Ltd (HC, 13/11/89)

Judgment Text

JUDGMENT OF JEFFRIES J. 
JEFFRIES J
The plaintiffs are the executors and trustees of the estate of the late Janice Mary Groves and bring this action on behalf of her estate. The deceased was married to Peter William Groves who farms in the Wairarapa district near Masterton. The defendant was, and still is, the insurers of the family and its farming business. Mr Groves gave evidence that defendant's agent in the course of reviewing their insurance requirements in 1986 advised that a policy of personal disability insurance be effected on Mrs Groves by which defendant insured against bodily injury, or death, as a result of accident. The policy was concluded for one year from 23 September 1986 and the premium was paid. It is not disputed that the policy was in full force and effect at the date of the event which caused the death of Mrs Groves. 
I now turn to the events which led to her death on 10 December 1986. Mrs Groves was first seen by a Masterton obstetrician and gynaecologist on referral by her general practitioner on 18 November 1985. She had been suffering from menstrual difficulties for about 3-4 years. She had then had a past history of asthma over 20 years and was on medication for that condition. On 25 November 1985 a curettage and cervical diathermy operation was performed at a local hospital without incident. In the next year her problems continued. It was decided in conjunction with her surgeon she would have a hysterectomy and was admitted to Masterton Hospital on 8 December for the operation to be performed the following morning. She signed the necessary consent to the medical and surgical procedures which, of course, embraced anaesthesia. At about 8.00 a.m. on 9 December 1986 Mrs Groves went into theatre in preparation for the intended operation. Upon administration of the anaesthetic agents by the anaesthetist there was an immediate reaction, which consisted of a bronchial spasm and a fall in blood pressure. The intended operation was abandoned as emergency procedures were immediately instituted, but were unsuccessful, and Mrs Groves died the following day. 
The court has had made available to it by consent a considerable volume of background and expert opinion on the events which led to the patient's anaesthetic death. None of that material is in dispute and it is fair to say there is not even a peripheral issue of medical negligence. The expert medical opinion overall seemed to conclude the death was an unfortunate event and an occasional unavoidable hazard of anaesthesia procedures. Plaintiffs called Dr D.G.R. Wright, a recognised expert in the field of anaesthetics. It would appear that the proximate cause of death was an anaphylactoid reaction to an anaesthetic agent. Apparently three separate agents were administered and it is not possible to say for certain which was responsible for the adverse reaction but pancuronium or thiopentone seem the most likely culprits. Dr Wright endorsed as correct the figures contained in the material that the occurrence of such a reaction is in the order of one to 5,000 administrations of which about 48 terminate fatally. His evidence may be summarised in the following answer he gave to counsel's question:  
“Is there any practicable way in which a reaction such as this can be prevented or guarded against? No this is one of the nightmares of anaesthesia if I can use that expression. It is totally unpredictable, impossible to foresee and it is one of the greatest accidents that can fall on the anaesthetist. ”
The event in question in these proceedings upon which the claim for the death benefit of $100,000 is based is contained in the policy and the following wording of the policy is agreed as applicable:  
“Death As Result of Accident 
Bodily injury caused solely and directly by accidental, violent, external and visible means and resulting within 12 months in death. ”
The issue is whether the death of Mrs Groves in the manner described above, which is not itself an issue of dispute, was an accident. The plaintiffs argue it was an accident and the defendant denies it. 
The court returns to a closer analysis of the facts to retrace exactly what were the circumstances which placed Mrs Groves inside the operating theatre before administration of the anaesthetic agents. These facts are taken from the material placed before the court. Mrs Groves was at the time 52 years of age. She had been a sufferer from asthma for many years but this was not regarded as influential in her death. Those who suffer from asthma are not considered to be at greater risk from anaphylactoid reaction than non-sufferers. She had undergone without incident an anaesthetic in November 1985 for a curettage. It appears at least one of the anaesthetic agents was used then as in December 1986. She had for about four years prior to the event suffered from a well-recognised gynaecological condition for which the indicated treatment was hysterectomy. It was considered a non-life threatening condition and as evidence of that when her case was reviewed by her surgeon in October and a decision to operate made she was placed on the Public Waiting List at the Masterton Hospital to await her turn, which was reached in early December. Therefore, at the moment prior to administration of the anaesthetic agents Mrs Groves presented as a middle-aged woman about to undergo a surgical operation to cure a well-recognised gynaecological condition. Her own expectation was that it was highly probable it be performed without incident. There was nothing unusual in her background to suggest otherwise, and within 13 months she had undergone an anaesthesia entirely without incident. I think it is important to emphasise, for the purpose of this analysis, the proximate cause of death was anaphylactoid reaction to an anaesthetic agent, and it is to that event the court now turns. 
For the purposes of the Inquest which was held the services of Dr Duncan Charles Galletly, a senior lecturer in anaesthetics at the Wellington Clinical School of Medicine, were engaged. He prepared a report for the Inquest and I now reproduce extracts which explain the exact nature of anaphylactoid reactions and provides other helpful material:  
“Anaphylactoid reactions are not uncommon in anaesthesia, they occur with a frequency conservatively estimated to be 1 in 5000 anaesthetics. They range in severity from mild skin rash to severe life threatening collapse. Reactions are unexpected and usually occur immediately following induction of anaesthesia. The first symptoms are usually, impalpable pulse, flush or difficulty with breathing (ventilation). The mortality varies with the severity of the reaction but most reports cite a figure of 4% which is also the mortality we have found in the Wellington area. Death is said to be most common where intense bronchospasm occurs as part of the reaction and in reactions to the barbiturates (eg thiopentone). 
Reactions generally occur in women more often than men, and in patients with a past history of previous anaesthesia, drug allergy or atopy (hay fever, asthma or eczema). The most frequent causes of anaphylactoid reactions are the muscle relaxant (paralysing) drugs (eg curare) and the barbiturates (eg thiopentone) are incriminated considerably less frequently. Whilst previous exposure to these drugs may cause the initial sensitisation to them it is believed that exposure to environmental compounds with similar structure may cause the initial sensitisation. Thus previous exposure is not absolutely necessary for these reactions and adds to their unexpected nature. 
In this case the patient had had previous exposure to thiopentone. Fentanyl reactions are extremely rare and I believe it is likely that the causative agents were either the pancuronium (a muscle relaxant) or thiopentone. 
In summary I believe this patient suffered a major anaphylactoid reaction to either thiopentone or pancuronium. The event was unexpected and could not have been reasonably predicted beforehand. The agents used for the induction of anaesthesia were appropriate for such a patient with her previous medical history. I do not believe that malfunction, misuse or absence of vital equipment played any part in this event. The subsequent attempts at resuscitation were well performed however the associated mortality of an event of this severity, is high. ”
Having set out the facts, the Court now turns to the law. It is true that the concept of what is an accident, where that word is used in the realms of personal injury, have given the judges, text writers and commentators the utmost difficulty, for despite the continued efforts of those persons, the word has defied a satisfactory and precise definition almost anywhere in the common law world. Insurers have been prepared to offer the market accident insurance but have been astute to ensure that only some accidents are covered, and that there is no infiltration into the concept of other health debilitating conditions of the body. 
With that sentence, already it is clear that the difficulty is probably linguistically insoluble despite the confident distinctions that have been made by Courts to ensure fairness for insurers and insured. 
This particular branch of insurance law has been dominated for almost 100 years now by a Scottish case Clidero v Scottish Accident Insurance Co. Ltd, (1892) 19 R. (Ct of Sess) 355. The deceased in that case, whilst pulling on his stockings in a conventional way, nevertheless displaced his bowel which placed pressure on his heart and he died a few days later. He was apparently overweight. A claim was brought for the death benefit arising out of an accident and it was resisted by the insurer. Lord Adam delivered the decision on appeal which has lasted, and he perceived a very clever distinction, putting it in this way at P.362:-  
“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. ”
That distinction between accidental means and accidental result has had a powerful influence on this aspect of the insurance law. The distinction has never lost its attraction as the following cases demonstrate. Re Scarr and General Accident Assurance Group Ltd, [1905] 1 KB 387; Long v Colonial Mutual Life Insurance Society Ltd, [1931] NZLR 528; Steinke v Australian Provincial Assurance Association Ltd, 1944 Q1d.S.R.; Dennis v City Mutual Life Assurance Society Limited, [1979] VR 75; Cotton v Phoenix Assurance Co. of Australia Ltd, [1983] 2 ANZ Insurance Cases 60-522. 
There is another line of authority which has a less assertive tone, but nevertheless takes a wider view for accident and rejects the accidental means accidental result analytical framework. Its history is about the same length, beginning with Hamlyn v Crown Accidental Insurance Co. Ltd, [1893] 1 QB 750. The essence of the fact pattern is very close to Clidero, supra, without the terminal result of that case. The Plaintiff wrenched a knee causing a dislocation of the cartilage whilst retrieving a rolling marble dropped by a child on a sloping floor. A critic of the reasons given by the English Court of Appeal might say they chose to bypass the problem rather than attempt a resolution. It was held the injury had been caused by accidental means. The case may not have been followed as regularly as Clidero, supra, but in Australia its reasoning seems to be attracting the majority of modern support. See Federation Insurance Ltd v R. Banks, [1984] VR 525; Australian Casualty Co. Ltd v Frederico, (1986) 66 ALR 99; A.F.G. Robinson v Evans Bros Pty Ltd, [1969] VR 885; National and General Insurance Co Ltd v Chick, (1984] 2 NSWLR 86; Mount Albert City Council v New Zealand Municipalities Co-operative Insurance Co. Ltd, (1983) NZLR 190. The Court adds that the foregoing authorities are but a small sample of the authorities, of which there are scores more. See for example a United States case as far back as 1940 in which counsel cited over 100 cases: Zinn v Equitable Life Insurance Co. of Iowa et al, 107 P. 2d 921. 
Let us return to the facts to decide whether the accidental means/result analysis could apply in these circumstances. By this analysis, the anaesthetist, with the consent of the patient, introduced intentionally anaesthetic agents into the body which are known in a percentage of cases to produce an anaphylactoid reaction and, in a much smaller percentage, death. According to Clidero the means, i.e. anaesthetic agent, was no accident, in that it was deliberate and intended, even if the result (death) was an accident, in the sense it was unexpected, unforeseen, and a misfortune. In my respectful opinion, that analysis depends upon an underlying acceptance in its favour of the unknowable and unexplained. Because an act is done deliberately does not necessarily exclude accidental means. The chances of such reactions are fairly long and then only 4% of that number end fatally. To characterise the one fatal case in 125,000 administrations as not an accident on the grounds that the anaesthetist “intended to use, and did use, and was prepared to use” (Clidero), the anaesthetic does not seem to me to be using words as ordinary people use them. 
The real problem within these facts is that medical science is unable to supply the causal link between anaesthetic agent and anaphylactoid reaction. It would appear, from the expert's opinion, reproduced earlier in this judgment, that some persons have a condition of initial sensitisation. It seems that initial sensitisation may have been caused by previous exposure to say, pancuronium, (muscle relaxant) but it could also be to environmental compounds with similar structure. 
At the conclusion of the expert anaesthetist's evidence, I asked him this question after dealing with the percentage reactions previously mentioned:-  
“Is that the same sort of reaction that could come from a bee sting? 
It is. ”
Now, if a bee sting could cause an anaplylactoid reaction as well as an anaesthetic agent, it seems at least to establish the environment as a possible accidental means. If Mrs Groves had been stung by a bee outside the hospital that day, with the same immediate result as that produced by the anaesthetic agent, it would not be disputed, one imagines, it was an accident within the policy. What if some time prior to the hospitalisation she had become initially sensitised, unknown to herself, eg such as a bee sting or inhalation of a substance to which she was allergic? In that condition of initial sensitisation she is deliberately injected with an otherwise harmless anaesthetic agent and the reaction is produced. That is not a fanciful proposition but within the expert opinion in this case. If the above hypothetical were to be established by evidence, the “true” accidental means was the bee sting or the inhalation, and the injection of agents was the cause after the cause. What the Court is suggesting by the foregoing is that it would be wrong to apply the Clidero dichotomy of accidental means and accidental result to all, or nearly all, such situations in dispute under personal accident policies. The point is illustrated by acknowledging the facts in Dennis's Case, (supra), and Cotton's Case are supported by the Clidero approach because the history of the accidents are known in that Dennis was a case of a well established pre-existing heart condition and Cotton concerned a self induced state of auto-erotic sado-masochism that went wrong and caused his death. Strangely enough, Clidero might be right for the two cases just mentioned above but not really for its own facts, or those of Hamlyn, (supra) or Long, (supra). There was some suggestion in Long that there were evidentiary omissions which might have made a difference to the result of the case. 
For myself, I think before an event that has as its most convenient, and obvious description an accident is decided by Courts in a situation of dispute on the wording of an insurance policy to be not an accident, then the reasons must be more convincing than a separation of means and results. There would be few ordinary people in society (absenting lawyers and insurers) who would not call the Clidero, Hamlyn, Long situations accidents. A modern example is the Federation Insurance Case, supra. Dennis may be arguable, but most might agree Cotton was not an accident in the insurance policy sense. One can only join with many other judges who have applauded the dicta of Cardozo J in a dissenting opinion in Landress v Phoenix Mutual Life insurance, 291 U.S. 491 (1934) when he said that “The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian bog”. This Court's view is that expressed from an earlier decision of that very learned judge in Lewis v Ocean Acc. & Guar. Corp., 224 N.Y. 18, 120 N.E. 56, 7 A.L.R. 1129, in which he stated the following in a case involving death resulting from puncturing a pimple:-  
“Unexpected consequences have resulted from an act which seemed trivial and innocent in the doing. Of itself, the scratch or the puncture was harmless. Unexpectedly it drove destructive germs beneath the skin, and thereby became lethal. To the scientist who traces the origin of disease there may seem to be no accident in all this. ‘Probably it is true to say that in the strictest sense, and dealing with the region of physical nature, there is no such thing as an accident.’ Halsbury, L.C., in Brintons v Turvey, L.R. 1905 A.C. 230, 233. But our point o view in fixing the meaning of this contract must not be that of the scientist. It must be that of the average man. Brintons v Turvey, supra; Ismay [Imrie & Co.] v Williamson, L.R. 1908 A.C. 437, 440. Such a man would say that the dire result, so tragically out of proportion to its trivial cause, was something unforeseen, unexpected, extraordinary, an unlooked-for mishap, and so an accident. This test - the one that is applied in the common speech of men - is also the test to be applied by courts. ”
Adopting that extract, I conclude that the anaesthetist, Dr Wright, in the spontaneous answer to counsel's question reproduced above, when he described the event “as one of the nightmares of anaesthesia” and as “one of the greatest accidents that can fall on the anaesthetist”, was correct in fact and law. 
The Plaintiffs succeed and there will be judgment in their favour for $100,000, plus costs and disbursements according to scale. 

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