ALCOHOL ISSUES IN INSURANCE CLAIMS
By Jonathan Goodliffe
Dhak v Insurance Co. of North America  1 W.L.R. 936.
The plaintiff's late wife, had a personal accident policy providing for payment in the event of "bodily injury resulting in Death ... caused directly or indirectly by accident."
The policy defined "bodily injury" as "bodily injury caused by accidental means ..."
Mrs. Dhak died in her bed. The blood/alcohol concentrations in her body were at a very high level. The immediate cause of death was asphyxia caused by the regurgitation of the contents of the stomach in her lungs. Some months before Mrs. Dhak's death she had begun to drink heavily to relieve pain. On the night in question the plaintiff described her as "perfectly normal apart from obviously having had some alcohol", but the forensic evidence indicated that her condition was more serious that he suspected.
The plaintiff claimed on the policy. The insurers denied liability.
Had Mrs. Dhak's death resulted from bodily injury? Was it caused by accidental means?
In the Court of Appeal, Neill LJ, with whom Aldous LJ and Sir John Balcombe concurred, could see no reason why:
"bodily injury should be restricted to some injury to the exterior of the body. The introduction of some foreign matter into the body or into a particular part of the body which causes harmful physiological changes in the structure of the body can in my view amount to a bodily injury ..."
He found support for this view in Australian Casualty Co. Ltd. v Federico (1986) 160 C.L.R. 513 and Johnson v Mutual of Omaha Insurance Co. (1982) 139 D.L.R. (3d.) 358.
The more difficult question was whether the bodily injury was "caused by accidental means".
At one end of the scale Lord Macnaghten, in Fenton v Thorley & Co. Ltd.  A.C. 443 at 448. had defined "accident" as "... An unlooked-for mishap or an untoward event which is not expected or designed."
At the other end of the scale Mustill LJ, in De Souza v Home and Overseas Insurance Co. Ltd.  L.R.L.R. 453, decided 20th July 1990 had considered that:
"A man must be taken to intend the ordinary consequences of his acts... His death is not to be regarded as accidental merely because the assured did not know his condition and did not therefore foresee the effect."
Neill LJ in Dhak considered that:
where an insured takes a calculated risk, that if he continues with a course of conduct, he might sustain bodily injury, and
the bodily injury is the natural and direct consequence of the course of conduct, and
no fortuitous cause intervenes,
his injury cannot be regarded as caused by accident. The judge at first instance had been "justified in finding that Mrs. Dhak must have been aware of the consequences and dangers of drinking alcohol to excess ... She was a ward sister with many years experience as a nurse."
The outcome of this case is not easy to reconcile with earlier authority. Although Neill LJ followed De Souza, that case concerned a man who died of heat stroke. The Court of Appeal held that there was no "bodily injury", let alone any accident.
In Marcel Beller Ltd v Hayden  1 QB 694 it was held that a person whose blood alcohol content was 261 mg. per ml. while he was driving a motor car was not deliberately exposing himself to exceptional danger for the purpose of a claim on his personal accident policy. In Morley v United Friendly Society  1 WLR 996. the deceased, who had had 4 to 6 pints of beer, stepped on the rear bumper of a slowly moving car driven by his fiancée. He fell off, sustaining injuries from which he died. Neill LJ held that this was not "wilful exposure to needless peril" for the purpose of a claim on an accident insurance policy. The policy also required that there should be "bodily injury caused by violent accidental external and visible means". No argument to the effect that there was no accident seems to have been put to the court. What is the purpose of a "wilful exposure" exception if the taking of a calculated risk by the insured is in any event sufficient to prevent an accident from being deemed to take place?
Dr. B Mahendra has commented ("Doc Brief", New Law Journal, March 22 1996, page 407.):
"Consider a keen amateur sportsman engaging in vigorous activity and damaging himself in a way that causes him to lose his livelihood. Or the DIY enthusiast who hammers his thumb or saws his hand, the trainspotter intercepting flying wood or metal or the computer games fanatic who sustains repetitive strain injury. Are they taking a calculated risk and embarking deliberately on a course of conduct leading to some bodily injury? Suppose also that instead of drinking heavily over a period of time the deceased had merely got drunk on one occasion and asphyxiated. It would seem that the insurance companies can deny liability just as well in this situation."