Life Insurance Issues
Cases
O’Brien v The Irish National Insurance Co., Ltd
Judge Sealy, in the course of his judgment, said—In this case, in my opinion, section 36 of the Assurance Companies Act, 1909, comes to the plaintiff’s relief. I believe she had quite a good expectation of having to pay for the expenses of her brother’s death; and I do not think the amount she insured for was unreasonable. Accordingly, on that ground, the defence fails. Nor do I think there was any misrepresentation. I do not think that the pain in her brother’s shoulder was a thing the plaintiff was under any obligation to disclose. The plaintiff must therefore have a decree for the amount claimed, with costs.
Kelleher v. Irish Life Assurance Company Ltd
[1988] IEHC 3 (16 December 1988)
TRANSCRIPT OF JUDGMENT DELIVERED BY THE HONOURABLE MR JUSTICE DECLAN COSTELLO ON 16TH DECEMBER 1988
The deceased, Dr Daniel Kelleher, was a Consultant Physician practising in Cork. He was married with two grown-up sons and at the time of his death was aged 57.
Sedgwick Dineen Consultants Limited operated a group life assurance scheme on behalf of the members of the Irish Medical Assocation. The insurers under the scheme were Irish Life Assurance PLC, the Defendants in this action.
A contract of insurance was entered into not long before Dr Kelleher’s death between the Defendants and Dr Kelleher’s wife, Mrs Hilda Kelleher, and it was entered into in the following circumstances:
An application form (which I will call “a general application form”) was sent by Sedgwick Dineen Consultants Limited to Dr Kelleher. It was signed by Dr Kelleher and also by Mrs Kelleher. Along with that form was sent a second form (which I will call “the special application form”). This form was signed by Dr Kelleher alone.- After these two documents were returned, a policy of assurance was issued on 10th October 1985, and it is this policy which is the subject matter of these proceedings. Under this policy the life of Dr Kelleher had been insured for £80,000. Dr Kelleher, in fact, died in tragic circumstances not long after the insurance was effected and Mrs Kelleher now makes a claim on foot of this policy.
It is necessary to refer in some detail to the policy and to the two proposal forms to which I have referred. It is stated in the policy that the policy was granted by Irish Life Assurance PLC and accepted by the proposer named in the schedule on the basis of the proposal made in writing and signed by the proposer. The only document signed by the proposer, that is to say, Mrs Ke lleher, was the general application form, and I am satisfied that the reference in the first paragraph of the policy to “the proposal” is a reference to the general application form.
The policy goes on to state: “The contract of assurance will consist of this policy… (reads) … and the proposal”., so that the Defendants are correct in their submission that the contract between the parties is to be found not just in the policy of assurance but also in the general application form to which I have referred.
The general application form contained on page 2 a series of questions which were required to be answered by aperson using the form in the normal course of events but these were explicitly excluded and crossed out for reasons which I will explain in a moment. However, at the end of the application form there is contained a declaration which was signed by Dr Kelleher and also by Mrs Kelleher. It is of some relevance to point out that this declaration was signed by Mrs Kelleher while she herself was in hospital but that it was read over to her by Dr Kelleher, so that both Mrs Kelleher and Dr Kelleher were fully aware of what the declaration contained. The declaration stated as follows:
“I/We the life to be assured … (reads). ..should be disclosed.” The last paragraph of the declaration reads: “It is hereby agreed… (reads). .shall be the basis of the contract of assurance.”
To my mind the reference to “any other declaration” has the effect of making the declaration contained in the special form form part of the basis of the contract of assurance. The special form was sent out because Sedgwick Dineen Consultants Limited had negotiated with Irish Life a special scheme of insurance, the main effect of which was to obviate the necessity for members of the IMA to produce medical evidence before a contract of insurance was entered into. In this form that was used was a form which was printed and which was apparently of use in a general way for pension plan schemes. On the back of the form there was typewritten script which was clearly inserted for the purposes of the special scheme with the IMA. One of the paragraphs was headed “Special Promotional Offer Benefit” and it was made clear from the special form that there would be life cover of £80,000 and disability benefit cover of £10,000 and that the life cover was to be made available free of medical evidence.
The declaration of health which Dr Kelleher signed was as follows: “I declare that I am actively at work… (reads) … to today’s date.” It seems to me that this declaration was correctly made. The evidence has not established that there was anything wrong with the facts so declared and I do not think that any right arises from any alleged breach of any of the statements made in that declaration.
However, whilst the situation as stated by Dr Kelleher in the declaration of health was true, there was nonetheless another aspect of the case to which I must now refer. Dr Kelleher had unfortunately suffered from cancer in the year 1981. He, an experienced and knowledgeable doctor, felt that he needed a check up and his doctor in Cork confirmed the bad news to him. Cancer of the prostate gland had been diagnosed and Dr Kelleher went to London to have treatment. He obtained radiation treatment in London for the cancer, which was successful. This radiation treatment apparently stopped the cancer and its spread but the effect of the treatment, unfortunately, was to cause radiation damage. This radiation damage has been made clear from the hospital records which have been produced and it has been referred to in the evidence of Dr Jago, evidence which I accept for the purpose of this judgment.
The Defendants’ case is that there were material facts not disclosed firstly, relating to the fact that Dr Kelleher had cancer in 1981 and, secondly, that he suffered from radiation damage which was continuing up to the time the declarations to which I have referred were made on 10th September 1985, and that their non-disclosure permits them to repudiate the policy. The Defendants rely on the breach of the terms of the declaration to which I have referred which is contained at the end of the general application form. They also rely on the conditions in the policy itself, conditions which are of course, part of the terms of the contract between the parties.
The first condition on which the Defendants rely is a different matter altogether to the question of non-disclosure. It is contained in clause 4 of the conditions which provides that, in the event of the death of the life assured by his own act within one year from the date of the commencement of the insurance, the Company shall not be made liable to make any payment under it.
The defence was raised that there was a breach of clause 4 of the contract in that the death of Dr Kelleher on 30th November 1985 was death by suicide. I accept the general principles in relation to this, aspect of the law as set out by Mr Justice O’Hanlon in The State (McKeown) v Scull y a986)ILRM 133. I am satisfied that the Court cannot presume suicide and that a claim that a person committed suicide must be strictly proved. The evidence does not satisfy me that Dr Kelleher killed himself. Therefore the result is, in my opinion, that this ground by which the Defendants claim to repudiate the contract fails.
I turn, then, to what I think is the Defendants’ main case: the nondisclosure of material facts which they claim occurred in this case. ,_„ As I stated, they rely not just on the terms of the declaration made in the general application form but also on clause 6 of the contract which provides:
“If any question contained in the proposal… (reads) … the Company shall be entitled to avoid the policy.”
What the Defendants claim is that there has been non-disclosure concerning the health of the life assured. I propose to approach the consideration of the issues raised on this aspect of the case by considering the obligation of the Plaintiff and also the obligation of the deceased at common law. Again, there is no conflict on this aspect. The general duty at common law is to disclose material facts, that is, facts which would affect the mind of a prudent insurer either in deciding to underwrite the risk at all or in fixing the premiums.
I think that the Defendants are correct in their contention that the two facts to which I have referred are material facts, that is to Bathe fact that Dr Kelleher had had cancer in 1981 and the fact that he received radiation treatment for it which caused radiation damage for which he had been treated up to as late as February 1985, were material facts as understood in the common law doctrine on this subject. I think that both these facts would have affected the mind of a prudent insurer, both as to whether or not a risk should be undertaken and, if it was, as to what premium should be paid.
What I now have to consider is the effect of the contract on the common law duty which Dr Kelleher and Mrs Kelleher had in the circumstances of this case. To my mind it is clear that the terms of the contract itself did not in any way reduce the duty which existed. The declaration at the end of the application form was, I think, made part of the contract between the parties and the statement “I/We understand that failure to disclose a material fact …(reads)…,r may constitute grounds for rejection of the claim.”, means that there was, because of the view I have taken of these two facts, a breach of the obligation contained in the declaration to disclose material facts.
Apart from that, there seems to me to have been an obligation imposed by the contract in relation to the disclosure of matters concerning the health of the life assured in clause 6, so that there is nothing in the contract by which it could be said that the duty at common law has been reduced or modified. That there was a contractual obligation arising from the contract of assurance is perfectly clear and the Defendants are entitled to avail of the terms of the contract.
It has been said, however, on behalf of the Plaintiff that there has been a waiver of the common law duty to which I have referred. It is said that this waiver arises from the fact that the general application form had deleted from page 2 all the questions which normally would be required to be answered and that, furthermore, the special application form contained a declaration of health which was an extremely limited one. It is urged that these two facts amounted to a waiver by Irish Life of the obligation to which I have referred. I cannot agree with this submission, however.
It seems to me to run counter to the clear wording of the declaration at the end of the general application form. I think it is quite clear to anybody reading the two documents that Irish Life were requiring a full disclosure of material facts and that there was no waiver of the obligation.On the contrary, in fact, there was an insistence on it by the two documents to which I have referred.
I think there may be a misunderstanding in the submissions that have been made to me as to the effect of the special promotional offer. The special promotional offer was obviating the necessity of producing medical evidence but it did not obviate the obligation to make full disclosure and this was, in fact, underlined in the other document which was sent to persons availing of the special scheme.
Finally, it has_ been suggested that the effect of the Supreme Court decision in Aro Road and Land Vehicles Ltd v The Insurance Corporation of Ireland (1986) IR 403 is that in this case full disclosure was not necessary.For the purpose of considering this submission I will assume that this decision covers life assurance cases and I will assume that it covers cases in which there have been proposals signed by the insured. But if the test is, as suggested on the Plaintiff’s behalf, that facts which are material and which must be disclosed are only those facts which an insured person himself would consider to be reasonable to disclose, then must hold that Dr Kelleher failed to pass the test as did the Plaintiff.
Both Dr Kelleher and the Plaintiff were aware of the medical history to which I have referred. I do not think either of them could have thought it reasonable not to disclose this medical history. If the test was one of reasonableness on the part of the insured person, think it was unreasonable for there not to have been disclosure of the fact that there had been cancer and radiation damage.
In these circumstances it seem to me there was no waiver by the Defendants of the obligation which was on the Plaintiff and on the person whose life was insured. There was no variation of the common law duty. There was a contractual duty to disclose which .r was stated in clear terms. In my view the breach of that contractual duty entitles the Defendants to repudiate liability.
In the particular circumstances of this case a fair order to make would be that both parties bear their own costs. In the normal way when a defendant raises a number of points and wins but only wins on one point, a defendant would still be entitled to costs. Once the allegation of suicide had been made I think the Plaintiff reasonably felt justified in going on with the case. This might have been the result if this allegation had not been made, so I think a fair order, is to provide that both parties bear their own costs in view of the fact that this serious allegation has not been established.
Dalby v India and London Life Assurance Co
(1854) 15 CB 365
PARKE B
The contract commonly called life assurance, when properly considered, is a mere contract to pay a certain sum of money on the death of a person, in consideration of the due payment of a certain annuity for his life,-the amount of the annuity being calculated, in the first instance, according to the probable duration of the life: and, when once fixed, it is constant and invariable. The stipulated amount of annuity is to be uniformly paid on one side, and the sum to be paid in the event of death is always (except when bonuses have been given by prosperous offices) the same, on the other. This jpecies of insurance in no way resembles a contract of
Trew v Railway Passengers’ Assurance Co
(1861) 6 H & N 839
.
COCKBURN CJ
It is said that, assuming the deceased died by drowning, drowning is not one of the cases comprehended in this policy of assurance. …. ingeniously argued that the policy only applies to cases where from accident or violence some injury occurs from which death may or may not ensue; and if it ensues within three months, the sum assured is payable. But he contended, in effect, that where the cause of death produces immediate death without the intervention of any external injury, the policy does not apply; and whereas from the action of the water there is no external injury, death by the action of the water is not within the meaning of this policy. That argument, if carried to its extreme length, would apply to every case where death was immediate. If a man fell from the top of a house, or overboard from a ship, and was killed; or if a man was suffocated by the smoke of a house on fire, such cases would be excluded from the policy, and the effect would be that policies of this kind, in many cases where death resulted from accident, would afford no protection whatever to the assured. We ought not to give to those policies a construction which will defeat the protection of the assured in a large class of cases. We are therefore of opinion that, if there was evidence for the jury that the deceased died by drowning, that was a death by accident within the terms of this policy
Sinclair v Maritime Passengers’ Assurance Co
(1861) 3 E & E 478
COCKBURN CJ
The question is whether, under such circumstances, the death of the deceased can be said to have arisen from ‘accident’, within the meaning of the policy. We are of opinion that it cannot, and that our judgment must be for the defendants.
It is difficult to define the term ‘accident’, as used in a policy of this nature, so as to draw with perfect accuracy a boundary line between injury or death from accident, and injury or death from natural causes; such as shall be of universal application. At the same time we think we may safely assume that, in the term ‘accident’ as so used, some violence, casualty, or vis major, is necessarily involved. We cannot think disease produced by the action of a known cause can be considered as accidental. Thus disease or death engendered by exposure to heat, cold, damp, the vicissitudes of climate, or atmospheric influences, cannot, we think, properly be said to be accidental; unless at all events, the exposure is itself brought about by circumstances which may give it the character of accident. Thus (by way of illustration), if, from the effects of ordinary exposure to the elements, such as is common in the course of navigation, a mariner should catch cold and die, such death would not be accidental; although if, being obliged by shipwreck or other disasters to quit the ship and take to the sea in an open boat, he remained exposed to wet and cold for some time, and death ensued therefrom, the death might properly be held to be the result of accident. It is true that, in one sense disease or death through the direct effect of a known natural cause, such as we have referred to, may be said to be accidental, inasmuch as it is uncertain beforehand whether the effect will ensue in any particular case. Exposed to the same malaria or infection, one man escapes, another succumbs. Yet diseases thus arising have always been considered, not as accidental, but as proceeding from natural causes.
In the present instance, the disease called sunstroke, although the name would at first seem to imply something of external violence, is, so far as we are informed, an inflammatory disease of the brain, brought on by exposure to the too intense heat of the sun’s rays. It is a disease to which persons exposing themselves to the sun in a tropical climate are more or less liable, just as persons exposed to the other natural causes to which we have referred are liable to disastrous consequences therefrom. The deceased, in the discharge of his ordinary duties about his ship, became thus affected and so died.
We think, for the reasons we have given, that his death must be considered as having arisen from a ‘natural cause’, and not from
‘accident’, within the meaning of this policy.
Re an Arbitration between Scarr and General Accident Assurance Corporation
(1905) 92 LT 128
BRAY J
It seems to me that there was nothing accidental in the pushing and pulling of the drunken man, or the exercise of physical exertion in so doing. Scarr intended to do this. The drunken man offered only passive resistance. There was no blow. Then was the effect on the heart accidental? The demand or strain on the heart was the natural and direct consequence of the physical exertion, which I have necessarily assumed to be violent physical exertion. Then was the effect of this demand or strain on the heart accidental? It is true that Scarr did not foresee the effect; but this, in my opinion, cannot make it accidental if it was the natural and direct consequence of a demand or strain on a heart in the condition described. The evidence shows that there was no intervening fortuitous cause. The injury to the heart, which I assume to be bodily injury, seems to me to have been caused by the violent exertion, and the violent exertion was intended and not accidental. There was no slip or fall or blow. He intended to push and pull, and he pushed and pulled.
Williams v Lloyd’s Underwriters
LORD GODDARD CJ
The learned arbitrator has held that the words in the first line which mention resuming the ‘normal calling or occupation’ refer to the man’s pre-accident work or calling, which in this case was that of a steel worker. I should perhaps have said that, although it is agreed that he cannot resume as a steel worker, he has been found a job of light work as a watchman. Then, says the learned arbitrator, in the last line, where it says ‘resume any such calling or occupation,’ that must again refer to his normal calling or occupation.
In my view I agree with the learned arbitrator, and I do not
know that I can put my judgment better than he has put his in the reasons which he has given in the special case for his finding in favour of the applicant being totally disabled. I must say that I attach perhaps more considerable importance to the fact that this is dealing with his resumption of a ‘normal calling’, or a resumption of an ‘occupation of any kind’. I think it is distinguishing here between a man who has a normal calling and a man who may have an occupation which cannot be said to be his normal calling.
However, for whatever reason it may be, I think the construc tion placed upon this by the learned arbitrator is right.
Re United London and Scottish Insurance Co Ltd, Brown’s Claim
(1915) 113 LT 397
WARRINGTON LJ
The assured was found dead, and his death was undoubtedly occasioned by the inhalation of poisonous gas. The limitation in condition 4 which is material is in these terms: ‘This policy also does not insure against death or disablement by accident directly or indirectly caused to any extent … by anything swallowed or administered or inhaled.’
Was this death occasioned directly or indirectly to any extent by ‘anything inhaled’? Unquestionably it was. The death was caused by noxious gas inhaled. But it is said that we are not to read this clause in the policy literally; we are to import from the context into it this limitation-that it is confined to death occasioned by something voluntarily inhaled or something inhaled under circumstances which show that the assured voluntarily exposed himself to the danger of inhaling. I think th’at it only requires to be stated to show how impossible it is to import any such limitation into the words of the condition. Directly you depart from the literal meaning of the words you embark upon a sea of difficulties and speculations which ought, I think, if possible, to be avoided.
In my opinion, the death in this case was occasioned by something inhaled. It is therefore within the limitations expressed in the condition, and accordingly not an accident recoverable for by the policy.
Reed v Royal Exchange Assurance Co
(1795) Peake Add Cas 70
LORD KENYON CJ
It must be presumed that every wife had an interest in the life of her husband.
Griffiths v Fleming
(1909) 100 LT 767
FARWELL LJ
But I have come to the conclusion that Pickford J’s decision can be supported on a broader ground, and I desire to rest my judgment on it-namely, that a husband has as such an insurable interest in his wife’s life. The contrary appears to be stated in some of the textbooks, but the proposition is affirmed in Bullen and Leake (2nd edn), 161. The learned author says: ‘The interest in this statute means in general pecuniary interest. The interest of a father in the life of a child is not sufficient alone to support an insurance on the child’s life. But a wife may insure her husband’s life, and the husband his wife’s.’ There is no reported case in the books against this; the only reported case is Huckman v Fernie’, where the husband’s interest was assumed to be legal by Counsel and Court, and this latter is important, because the objection of illegality if it were possible could hardly have been overlooked, and certainly ought to have been taken by the Court if they thought it a sound objection: (see per Lord Eldon in Evans v Richardson).2 But I have come to this conclusion on the construction of the Act itself. The Act is expressed to be aimed at ‘a mischievous kind of gaming’, and it forbids an insurance ‘by any person’ on the life of ‘any person,’ ‘wherein the person for whose benefit the policy is made shall have no interest’. The 2nd section makes it unlawful to effect a policy on the life of ‘any person’ without inserting in the policy the name of the person for whose benefit it is made; and the 3rd section provides that ‘when the insured hath interest in such life etc, no greater sum shall be recovered or received from the insurers than the amount or value of the interest of the insured in such life’.
In Reed v Royal Exchange Assurance Co Lord Kenyon went a step further, and held that a wife, as such, has an insurable interest in her husband’s life, and he refused to allow evidence to be given by her that her late husband was entitled to a life interest of large amount. This shows that he regarded the husband and wife in the same position as the individual insured, for he would otherwise have been bound to take the evidence in order to satisfy s 3 of the Act. If the wife’s insurable interest depended on her right to necessaries at her husband’s expense, or on the possession by the husband of a life interest, the Judge could not of his own motion have excluded all evidence to show the age of the spouses at the date of the insurance, and the value of the interest or necessaries according to the station in life of the parties as compared with the sum assured. The case is very shortly reported, but in my opinion Lord Kenyon excluded the evidence on the same grounds on which evidence of insurable interest in the insured for his own benefit would be excluded-namely, that the case was not within the mischief of the Act. If this be so, it follows, in my opinion, that the same principle must be applied to the insurance by the husband of the wife’s life; a husband is no more likely to indulge in ‘mischievous gaming’ on his wife’s life than a wife on her husband’s.
Halford v Kymer
(1830) 10 B & C 724
BAYLEY J
It is enacted by the third section, ‘That no greater sum shall be recovered than the amount of the value of the interest of the insured in the life or lives.’ Now, what was the amount or value of the interest of the party insuring in this case?-Not one farthing certainly. It has been said that there are numerous instances in which a father has effected an insurance on the life of his son. If a father, wishing to give his son some property to dispose of, makes an insurance on his son’s life in his (the son’s) name, not for his (the father’s) own benefit, but for the benefit of his son, there is no law to prevent his doing so; but that is a transaction quite different from the present; and if a notion prevails that such an insurance as the one in question is valid, the sooner it is corrected the better.
Hebdon v West
(1863) 3 B & S 579
WIGHTMAN J
The other kind of interest, namely that which arises from the engagement by Pedder to employ the plaintiff for seven years at a salary of £600 a year, may, we think, be considered as a pecuniary interest in the life of Pedder, to the extent at least of as much of the period of seven years as would remain at the time the policy was effected, which appears to have been about five years. This, at the rate of £600 per annum, would give the plaintiff a pecuniary interest in the life of Pedder to the amount of £3,000 which would be sufficient to sustain the present policy, which is for £2,500 only.
Godsall v Boldero
(1807) 9 East 72
LoRD ELLENBOROUGH CJ
The interest which the plaintiffs had in the life of Mr Pitt was that of creditors; a description of interest which·has been held in several late cases to be an insurable one, and not within the prohibition of the statute 14 Geo 3, c 48, s 1. That interest depended upon the life of Mr Pitt, in respect of the means, and of the probability, of payment which the continuance of his life afforded to such creditors, and the probability of loss which resulted from his death. The event, against which the indemnity was sought by this assurance, was substantially the expected consequence of his death as affecting the interests of these individuals assured in the loss of their debt.
London Assurance v Mansel
(1879) 41 LT 225
JESSEL MR
I should say no human being acquainted with the practice of companies or of insurance societies or underwriters could doubt for a moment that it is a fact of great materiality, a fact upon which the offices place great reliance. They always want to know what other offices have done with respect to the lives. But in this case there could be no question as to its materiality. In the first place we have in the answer, ‘The defendant admits that proposals were made to the Clerical, Medical, and General Life Assurance Society, the Scottish Amicable Life Assurance Society, and the Law Life Assurance Society for an assurance on his life, and such proposals were declined.’ There are three proposals as admitted by the answer declined in the very words of the question, and then he goes on to-say in paragraph 15, ‘The defendant is not and never has been of intemperate habits of life, and although proposals for assurance on the defendant’s life had been made to and declined by the several offices in the statement of claim mentioned, the defendant’s life was never rejected by an office, but was passed as a first-class life by every medical officer who examined him.’ Then he tells us this also, that the ‘English and Scottish Life Assurance Office, which is the fourth office, passed his life as a first-class life, but they reserved the right of declining to complete the transaction at any time before the receipt of the premium. On 15 July the last mentioned office having learned that the Equity and Law Life Assurance Company had decided not to increase their risk on the defendant’s life, and would not take any part of the new risk, exercised their right by declining to complete the transaction.’ That is the only cause, they had heard another office had declined. There are two more offices, adding them to the three admitted. In the 12th paragraph, we have an admission by the defendant that no less that five insurance offices had declined to accept his life. Now to suppose that any human being who knows anything about life insurance, that any decent special juryman could for a moment hesitate as to the proper answer to be given to the question, when you go to the insurance office and ask for an insurance on your life, ought you to tell them that your proposals have been declined by five other insurance offices? is, I say, quite out of the question. There can be but one answer that a man is bound to say, ‘My proposals have been declined by five other offices, I will give you the reasons and show that it does not affect my life,’ as he admits it to be by this answer, but of that the office could judge. There can be no doubt as a proposition to be decided by a jury that such a circumstance is material.
Godfrey v Britannic Assurance Co Ltd
[1963] 2 Lloyd’s Rep 515
ROSKILL J
I have sought to exclude from the consideration of this problem and to avoid attributing to the assured anything which could fairly only be said to be within the knowledge of a lawyer, a doctor or a man with long experience in a life office. But wherever one pauses in order to apply the standard which the law requires to be applied, I cannot think that a reasonable man, with no specialist knowledge of any kind, could have failed to appreciate that he was possessed of knowledge and information relating to his bealth in the respects which I have already described which were of materiality and which were calculated to influence the mind ofa life office in considering and deciding on the risk.
Re Etherington and Lancashire and Yorkshire Accident lnsurance Co Ltd
(1909) 100 LT 568
VAUGHAN WILLIAMS LJ
Here we have a fall from a horse, and a fall from a horse is undoubtedly a heavy fall, and though it caused no breakage of bones and no wound, and no obvious internal hurt, yet it involved
a great shock, accompanied by a severe wetting and a ride home without any change of the wet clothes, and every case makes it palpable that the first results of such an accident would be likely to be the lowering to a great extent of the vitality of the person who had been subject to such a shock. In the second place, it seems to me beyond a doubt that such a lowering of vitality in the ordinary course of things would be likely to produce a great development of the pernicious activity of these germs which are said to exist in the respiratory organs of every human being, and that this pernicious activity of these germs would certainly produce, unless the vitality was quickened again, pneumonia, and it was from pneumonia so produced that Mr Etherington died.
I think it is impossible to limit that which is being put forward as the proximate cause to the one fact of the accident. The real truth of the matter is that the accident itself produces, and ordinarily produces, certain results, according to the nature of the accident, and the result produced according to the nature of the accident is the final step in the consequences, and it seems to me the whole transaction is really the proximate cause of the death that results.