Wednesday, October 13, 2010
Insurance claim enforced by High Court (confirmed on Appeal)
On 1 July 2002, SMD Telecommunications CC (“SMD”) had concluded a Group Personal Accident contract of insurance with Mutual & Federal (“M & F”). Such insurance provided that M & F would pay SMD agreed compensation upon the happening of a defined event / occurrence, being death or disablement of any of their managerial staff resulting from “Bodily injury caused solely by violent accidental external and visible means which injury shall independently of any other cause be the sole cause of any of the Results.”. Exceptions applicable to the section in question provided that “The General Exceptions shall not apply to this Section and this insurance shall not apply to any Occurrence consequent upon … 5. Any pre-existing physical defect or infirmity.”
On 10 October 2002 the deceased, Mr Keith Compton-James (the Chief Executive Officer of SMD), was involved in a motor vehicle accident near Bothasig, Cape Town, in which he sustained serious bodily injuries. Subsequent to being admitted to two separate hospitals on 4 separate occasions (for trauma care and treatment, orthopaedic surgery, arthroscopy and wash out of turbid fluid of his left knee, femero-popliteal bypass surgery on his left leg, treatment to his right upper leg, revision orthopaedic surgery to his right hip, a MRSA “staph aureus” infection (i.e. “hospital super-bug”) and inflammation of his left knee) and having undergone futile physiotherapy and still not being able to walk, Mr Compton-James died of a heart attack (“a myocardial infarction precipitated by a plaque rupture”) at his home on 18 May 2003.
The deceased had a known heart condition (although chronic and stable) prior to the accident, and M & F repudiated, and subsequently defended, SMD’s claim on the basis that Mr Compton-James would have died of his existing heart condition regardless of the injuries sustained in the motor vehicle accident, but not relying on the insurance policy’s Exceptions Clause in doing so.
Otto Krause Incorporated – Cape Town (E. Potgieter) represented SMD in their action against M & F in the Western Cape High Court and on 18 May 2009 Judge Dennis Davis ruled in favour of SMD ordering M & F to compensate SMD accordingly. M & F then launched an Appeal to the Supreme Court of Appeal in Bloemfontein and on 1 October 2010 the Appeal Court unanimously confirmed Judge Davis’s finding, dismissing M & F’s appeal with costs.
Click on the link provided to read the Appeal Court Judgment in this matter – its well worth the read for the insured “man on the street”!http://www.justice.gov.za/sca/judgments/sca_2010/sca10-133.pdf
On 10 October 2002 the deceased, Mr Keith Compton-James (the Chief Executive Officer of SMD), was involved in a motor vehicle accident near Bothasig, Cape Town, in which he sustained serious bodily injuries. Subsequent to being admitted to two separate hospitals on 4 separate occasions (for trauma care and treatment, orthopaedic surgery, arthroscopy and wash out of turbid fluid of his left knee, femero-popliteal bypass surgery on his left leg, treatment to his right upper leg, revision orthopaedic surgery to his right hip, a MRSA “staph aureus” infection (i.e. “hospital super-bug”) and inflammation of his left knee) and having undergone futile physiotherapy and still not being able to walk, Mr Compton-James died of a heart attack (“a myocardial infarction precipitated by a plaque rupture”) at his home on 18 May 2003.
The deceased had a known heart condition (although chronic and stable) prior to the accident, and M & F repudiated, and subsequently defended, SMD’s claim on the basis that Mr Compton-James would have died of his existing heart condition regardless of the injuries sustained in the motor vehicle accident, but not relying on the insurance policy’s Exceptions Clause in doing so.
Otto Krause Incorporated – Cape Town (E. Potgieter) represented SMD in their action against M & F in the Western Cape High Court and on 18 May 2009 Judge Dennis Davis ruled in favour of SMD ordering M & F to compensate SMD accordingly. M & F then launched an Appeal to the Supreme Court of Appeal in Bloemfontein and on 1 October 2010 the Appeal Court unanimously confirmed Judge Davis’s finding, dismissing M & F’s appeal with costs.
Click on the link provided to read the Appeal Court Judgment in this matter – its well worth the read for the insured “man on the street”!http://www.justice.gov.za/sca/judgments/sca_2010/sca10-133.pdf