Lloyd's Maritime and Commercial Law Quarterly
INSURANCE: ACCIDENTAL INJURY
National & General Insurance Co. Ltd. v. Chick
This is a recent decision of the Court of Appeal of the Supreme Court of New South Wales1. The court considered two matters of particular significance to underwriters, first whether the circumstances of the insured’s death fell within the ambit of National & General’s accident policy and, secondly, whether there was a misrepresentation or non-disclosure in the proposal form that had been filled in by the deceased’s wife.
The relevant provision of the accident policy was:
“bodily injury caused solely and directly by violent accidental, external and physical means and resulting solely and directly and independently of any other cause in … death”.
The deceased was an enquiry agent. He was discussing Russian Roulette with his friends. He pulled out his revolver. With one bullet in the revolver he spun its cylinder. The trial judge found that it was possible to see the location of the bullet in the cylinder when it was open and it could only be spun in the open “position”. The deceased pulled the trigger of the revolver on three occasions. The third time the revolver discharged causing him serious injuries from which he ultimately died. The trial judge found that the deceased knew or believed that the pulling of the trigger would not cause the discharge of the weapon and had little hesitation in reaching the conclusion that he did not intend to take his own life or cause himself injury. Thus the claim fell within the policy. This was upheld by the majority in the Court of Appeal.
Hutley, J.A., found that the deceased’s means of death was voluntarily embraced by him and was not accidental. He said that Australian authorities accepted the distinction between accidental means and accidental results as a valid one. He adopted the proposition stated by Kay, J., in Dennis v. City Mutual Life Assurance Society
2:
“To establish that the means of bodily injury were accidental, it must be proved either that the injury was caused by some act of the assured which he did not intend or alternatively that the injury was sustained because something external happened to him which interfered with his voluntary actions”.
He held that it had not been proved on behalf of the deceased that the pulling of the trigger was something the deceased did not intend.
Mahoney, J.A., considered that prima facie what had occurred fell within the relevant clause of the policy. He found that the unintended consequence of what the deceased did, i.e. the means by which the injury was inflicted on him, might properly be described as accidental. He distinguished between a Russian Routlette player knowing that there was a chance that the chamber on which the mechanism might strike was the one containing the bullet and the current incident where he was satisfied that the deceased was convinced that when he pulled the trigger the mechanism would not strike the loaded chamber. He considered that where the consequence in question
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