Phoeniz Zambia Assurance Company (2009) Limited v First Quantum Minerals Limited (Appeal/09/2016; CAZ/8/46/2016) [2017] ZMCA 487 (29 March 2017)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) BETWEEN: 7 9 MAR 2017 PHOENIX OF ZAMBIA ASSURANCE COMPANY (2009) LIMITED APPELLANT AND FIRST QUANTUM MINERALS LIMITED RESPONDENT Coram: Makungu, Sichinga, and Kondolo J. J. A On the 17th January, 2017 and 29th day of March, 2017 For the Appellant: Mr. K. Kamfwa and Mr. G. Comhill of Messrs Wilson & Comhill For the Respondent: Mr. S. Sikota, SC and Mr. K. Nkandu of Central Chambers _;t._· ~ -- _>- - :>. · _j,I,._· -,r ~ -- . JUDGMENT C. K. MAKUNGU, JA delivered the Judgment of the Court. Legislation referred to: 1. Marine Insurance Act 1906- Section 55 (1) 2. British Acts Extension Act, Chapter 1 0 of the Laws of Zambia Cases referred to: 1. AON Zambia Limited and Goldman Insurance Limited (2012) 2 Z. R 1 2. Sithole v. State Lotteries Board (1975) Z. R 106 3. Chuba v. The People (1976) Z. R 272 4. Prudential Insurance Co. v. Inland Revenue Commissioners (1904) 2 KB 658 5. Sinclair v. Maritime Passengers Assurance Co. (1861) 3 E & E 478 @) 6. Becmocs Limited v. AON Zambia Limited and Goldman Insurance Limited (2012) 2 ZR 1 7. Marius Mwelwa v. Konkola Copper Mines and Another Appeal No. 119 of 8. Union Bank of Zambia v. Jim Amos Mumba Appeal No. 179 of 1999 9. Wilson Masauso Zulu v. Avondale Housing project (1982) Z. R 172 (S. CJ 10. Fitton v. Accidental Death Assurance Co (1864) 17 CB (NS) 122 11. Issit v. Railway Passengers Assurance Co.(1889) 22 QED 504 12. Western Commercial Traveller's Ass'n v. Smith 85 Fed. 401,40 L. R. A 653 13. JJ Lloyd Instruments Limited v. Northern Star Insurance Company Limited ( Miss Jay Jay) (1985) I Lloyd's Rep 264 Work referred to: 1. Mac Gillivary on Insurance law Centenary edition, Sweet and Maxwell paragraphs 1 - 003, 11 - 029 ~ -- 2. The Law of IJ&surance Contrac~ ·Malcom Clark, pdfag~aph 2 _5 - 4 .~ ~ - - This 1s an appeal against the Judgment of the lower Court dated 20 th September, 2016 in favour of the plaintiff now respondent which company had claimed on behalf of its employee in service a Mr. Guy Alexander Havemann for compensation for personal injuries suffered by the said Havemann as a consequence of an accident which occurred in the course of his duties. The claim was made on the basis of a written group personal accident insurance policy between the defendant who is now the appellant and the respondent between 2012 and 2013. -J2- According to the amended statement of claim which is on record , the plaintiffs claims were as follows: 1. US$ 392 775 being monies due from the defendant to the plaintiff payable under a policy contract of insurance arising from accidents occurring in or about April, 2013 to one Mr. Guy Alexander Havemann. 2. Interest at the Bank of Zambia deposit rate from the date of commencement of this action to the judgment and thereafter at the average bank lending rate as determined by the Bank of Zambia. _;/£_. 4. Further / or alternative relief. According to the Statement of Claim the liquidated claim was arrived at by applying the express terms of the policy contained in the section entitled "Group Personal Accident Section" clauses. In terms of the definitions stated therein, under "Condimental Scale of Permanent Disabilities by Accidents'' "Permanent Total Disablement" it includes inter alia the disabilities described below, resting in payment of the stated percentages of the agreed disability benefit: -J3- • Loss of one hand and one foot - 100% • Loss of one hand and one leg - 100% • Loss of both feet - 100% The same contract provides: 100% shall be the maximum percentage of compensation payable for permanent disability resulting from an accident or series of accidents arising from one cause in respect of any one such person. ->-. The plaintiff claimed that the amputations of Havemann's limbs and . . .>-. -~:,_,~ -: ~fingers. reHGieu,tl:-ium totalw -~d perman~Illt1'~isabled ·a¥"eu~is.aged ~ -~~~ -~ - . . ->-. - , . :.>-. . ,j/4_. .>. by the policy. So they claimed the benefits provided for in the policy, being 100% of the amount equal to three times the annual earnings of Havemann at the time of the accident, which amounted US$ 130, 925. It is clear to us that the appellant had arrived at the amount claimed by multiplying $130, 925 by 3 which is equal to US$ 392 , 775. 00. In its defence as pleaded, the defendant admitted liability only for the loss of his thumb in respect of both phalanges being 25% of -J4- three times of Havemann's annual earnings at the time of the accident as prescribed in the permanent disability schedule of the policy. The defendant had therefore offered the respondent the net amount of K404 , 020 . 75 as compensation for the fractured thumb but the plaintiff rejected it. All other claims by the plaintiff were denied. It was common ground that the plaintiff had complied with all its obligations in terms of the policy and in particular, paid all premiums due in respect thereof. Further that Mr. Havemann fell ~-· in the categ~ of senior e~loyees covered~y the policy . · .> · Evidence before the court below was as follows: On 11 th April, 2013, Guy Alexander Havemann, who was 63 years old, was employed by the respondent as a forestry Manager. In the cause of employment whilst inspecting a logging crew in the bush near Kalumbila in North Western Province, Zambia, he fell and sustained an open fracture of the right thumb. He immediately went to Mary Begg Clinic which was nearby. At that clinic he was treated for the injuries he had sustained and discharged with a -JS- bandaged wound. On or about 29 th April, 2013 , Mr. Havemann whilst on a visit to South Africa, had severe medical complications including Disseminated Intravascular Coagulation (DIC), Septicemia gangrene, multi organ failure , shock and Ischemia of the lower and upper limbs which led to both of his legs from the knee downwards and all five fingers on his right hand as well as the ring finger , middle finger and the last phalanx of his index finger on his left hand to be amputated. The appellant's evidence through PW4 further revealed that -~:v;,a,rm ~d:~:;5,or~s of f,~~i~ ~n -his &ic!'b ~ _d thas,~ ~ •. were gran positive and gran negative which are the common causes of septic shock and DIC . That for malaria to lead to DIC, it would have to be severe and must conform to the ten conditions set out by the World Health Organization (WHO) of which Mr. Havemann only had one namely that of shock. Further that, he could not have contracted the malaria in South Africa because Western Cape is not a malaria area. The defendant now the appellant adduced evidence to the effect that the geographical limit of the insurance policy was Zambia and -J6- Mauritania. However, the Placing Slip issued through the respondent's broker stated that the basis cover was 24 /7 worldwide. Further that Mr. Havemann's amputations were not a direct consequence of the accident that he suffered at Kalumbila but that the same were occasioned by some other independent intervening causes. The learned High Court Judge held that the medical reports relied on by DWl were not made on oath nor were the authors subjected to cross - examination and as such, there was no evidential value ~attfch~d ther,:et9 .'·-~s r:egard~ tp~ {~p~rt opinj:9~.>£rqvided ~by"- 1(~1 , _ ,_;,;__-=.c ~ -;:~--- . -- - ,.i«~ -:;:~: . ·- · - """"' .. ~ -~~ . - '-"""~ -:_;,..,~ . __ '. - 'X'..""IJi, : ,.--~ . she held that the same was properly before the Court because he stood in court as a witness and was cross examined. In arriving at the foregoing findings, the Judge considered various authorities namely, AON Zambia Limited and Goldman Insurance Limited1 , Si thole v. State Lotteries Board2 and Chuba v. The People. 3 -J7- The appellant was aggrieved by the decision of the learned High Court Judge and launched this appeal advancing three grounds of appeal as follows: 1. The leamed trial Judge erred in law by misapprehending the pleadings and holding that the Defendants position was that the injuries the subject of the Respondents claim) were occasioned by malaria. 2. The learned trial Judge erred in law by Jailing to determine whether or not the injuries or damages suffered by Mr. Havemann were caused by accidental, violent) extemal and ->-· .;:,~ ~"3- : visible me-etns) directly and--independently>of all other ca~es - ~ -~,;,~ ·- ; :· ~ ~ ,; :,_.~ -,-::~ :· -- - as provided in the insurance policy. 3. The learned trial Judge erred in law by .finding that Mr. Havemann sustained injuries) the subject of the insurance claim) in Zambia. Both parties filed heads of arguments which they relied on at the hearing of the appeal. The gist of the arguments by the appellant's advocate i.e. Mr. Kamfwa in respect of ground 1, was that the evidence on record -J8- showed that it was the respondent herein that was contending that the injuries sustained by Mr. Havemann were occasioned by malaria and that at no point did the appellant attribute malaria to the amputations. That the medical evidence attributed the cause of the amputations to a myriad of factors including DIC and malaria. It was therefore argued that pleadings play a vital role in defining and limiting the issues in advance of trial. On this premise, counsel argued that the learned trial Judge fell into very grave error when she misapprehended the clear and unambiguous defence. Prudential Insurance Co. v. Inland Revenue Commissioners 4 wherein it was held that: " ... A contract of insurance is one whereby one party (the insurer) promises in return for a money consideration (premium) to pay to the other party (the assured) a sum of money or to provide him with a corresponding benefit upon the occurrence of one or more specified events." -J9- They further referred to the learned authors of Mac Gillivary on Insurance 1 who said at paragraph 1 - 003 as follows: "The Insurer must undertake a binding obligation to pay the assured upon the happening of the relevant event." "It is a fundamental rule of insurance law that the insurer is only liable for losses proximately caused by the peril covered by the policy. A proximate cause is not the first or the last or sole cause, it is the dominant or effet:tive or operative_ cause. Thff insurer is littble if such _;,1,._ · .:,;_=,~~ -::-~ -: __ ,_ ,· .:::=,.,~;. -~~ :· ·- a cause is within the risks covered by the policy and is ~ .;-=.~ ; -::~ : , __ - .::_; ,)/.: --::~ :. - . ~ :~~,)/.: -:;,--: : , . - not liable if it is within the perils excepted." The said advocates conceded that the evidence of PW3 Dr. Joseph Peters was admissible but not for the reasons stated by the Judge because the witness himself stated that he did not examine the patient. They went on to argue that the evidence is expert opinion made on data produced before the court. Further that PW3 's evidence shows that the actual cause of the amputations was bacteria which was as a result of Mr. Havemann's fractured thumb. -JlO- The bacterial infection resulting into sepsis and ultimately DIC is an independent and intervening cause of the injuries. They argued that the fall could not have been the active and dominant cause of the amputations. They further submitted that the insurance policy between the parties hereto contained the Policy Slip. The peril covered by the insurance policy between the parties hereto is contained in the Placing Slip, issued by the respondent's insurance brokers and the Policy produced by the appellant. The Placing Slip provides among other things that: "Injury. Aneans bodily. Atar_m ca,used-l>y violen!, ace'EdetJ.tal, -~~~ -•~---=- :· ..,- - ~ -~=,~ -· ~ ~ :· - - ~ :~~ -; :~ :· - . externaT and visible means." The policy produced by the appellant defines the perils covered as follows: "Bodily injury caused by accidental, violent, external and visible means" The Company will pay to the insured on behalf of such person .... in the event of accidental bodily injury to any -Jl 1- such person directly and independently of all other causes ... " The appellants advocate said the policy retains the wording of the Placing Slip, but limits the defined event by inclusion of words, "directly and indirectly of all other causes. " Mr. Kamfwa, pointed out that the learned authors of the Law of Insurance Contracts 2 have defined proximate cause as follows: "Proximate cause means the active, efficient cause that sets in motion a train of events which brings about the ~ - -> · - > · . >· .resu-ltf.-"fJffthout the~,;J~~e-nti~n,;:_~J-~hy -for~e --;.~--a.-· and ~ working actively from a new and independent source." He further submitted that the import and connotation of the policy wording is clear. The injury must be the result of accidental, violent, external and visible means. It must impact the skin and should be unplanned and visible to the eye. The term violent implies contact and sudden injury. He said the case of Sinclair v. Maritime Passengers Assurance Co 5 excludes disease or infection -J12- from the rubric of accident. Cockburn CJ had this to say in that case: "It is difficult to define the term 'accident' as used in the 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 -~-- involv~~- We canno;_ . think disea:;: produced_ ~~_. the th~ ~ :~~ -:~ :·· ---~ ~ acttnh"~ 'nf .-~ a ~ krr:tiuiJt :·· caus; /;:,~a~ -:- :be - c~i{stcl~d~· as accidental ... " He therefore argued that the bacterial infection and the subsequent sepsis and other complications were not covered by the policy and as such the failure by the Judge to determine whether or not the injuries fell within the defined perils in the policy was fatal . As regards ground 3, counsel for the appellant attacked the finding by the Judge that the accident occurred in Zambia. He argued -Jl3- that the court below arrived at this decision without advancing any reasons. He went on to state that a factual finding devoid of any rational as to how it was arrived at is contrary to the well known standards of Judgments. A judgment must have a clear analysis of the evidence adduced and sound application of the law to the facts. To fortify this, he referred to the cases of Becmocs Limited v. AON Zambia Limited and Goldman Insurance Limited6 and Marius Mwelwa v. Konkola Copper Mines and Another 7 respectively. Still on the issue of territorial limitation, he submitted that the PlaQing Slip_ prodaced by the · ~spondent's btt>kers introdu~d ,~~~ - ~ ~ -~~ -:;~ ,:- -~ - amoiguity because the first page -shows geographical limitation of ~ ,~::._¢".·-:;~ :· --· - ~ ,~:.-~ -,.:'•>::5 _:~-- ~ :~~~ -~ : · - - - :----~ Zambia and Mauritania while the second page shows worldwide coverage. He said the policy merely adds Democratic Republic of Congo to Zambia and Mauritania. He therefore argued that the obvious ambiguity should be construed contra preferentum against the respondent because it is the one that caused the ambiguity. He relied on Mac Gillivary on Insurance Law( 1l which says in paragraph 11 - 029 as follows: -J14- I «where two clauses in one deed or instrument are repugnant, the general rule is that the first shall stand and the latter be rejected." It is counsel's argument that since the provision with regard to the geographical limitation appears first in the Placing Slip; the same prevails over the subsequent provision. He also relied on the Supreme Court decision in Union Bank of Zambia v. Jim Amos Mumba 8 where guidance was given on interpretation of documents, that the latter document amends the earlier document. He coocluded that tll_e Policy has _>-erritorial limijra.tion to Zam]lia, submitted that there 1s no doubt that the physical injury to Mr. Havemann's thumb occurred 1n Kalumbila within Zambia. Therefore there was no evidence to show where the bacterial infection, which caused the sepsis and subsequent amputations, took place. The respondents bears the burden of proving that the bacterial infection which caused the sepsis and subsequent amputations occurred in Zambia. He finally prayed that the appeal be allowed with costs. -J15- In response to the arguments in ground 1, the respondent argued that the learned trial Judge in arriving at her findings considered a number of factors that were alluded to by both parties herein to negative the assertion that malaria may have been one of the causes that led to the amputations of Mr. Havemann. He argued further that the trial court in arriving at its decision relied on the expert evidence of PW 1 that the Wes tern Cape Province was a malaria free area. He went on to argue that the appellant's \., I advocates have attacked the findings of fact. He submitted that there was no misapprehension of facts by the Judge to warrant the re~"rsal of the ·· firtdings. To forl'ny this, he refied on the ca~-· of ~ :~"~ ·-> : _:.. ,:,;=. •► -;:~ : ~ ,:::.=..,.► -;:~ : ·- - ~ .:,;:=..$ ·::--=- : . ·- .. Wilson Masauso Zulu v. Avondale Housing Project. 9 ~ '~•► ·::-"5 : ·- As regards ground 2, counsel made reference to a portion of the policy also relied upon by the appellant as follows: "Bodily injury caused by accidental, violent, external and visible means . . . the company will pay to the insured on behalf of such person ... in the event of accidental bodily injury to any such person directly and independently of all other causes ... " -J16- It 1s counsel's contention that the words "directly and independently" used in the policy should be construed purposefully that it covers all causes that are a direct result of the peril covered. To support this argument, he referred us to Section 55 ( 1) of the British Marine Act 1906 1 which provides as follows: "Unless the policy otherwise provides, the insurer is I: liable for any loss proximately caused by a peril insured against, but ... he is not liable for any loss which is not . _j}._. . ·JA . . :.>-. .>-. ~;_~,~ -~~ !'~ox_im~~'!JY._;~~u._,se_d bg;~2!-fi:l .!~n~ureJ!:"Jac;if!~i:n_~t'~ ->-. - ·- -~~-,,; ·,:-<: : He said that the British Marine Act 1906 is applicable to Zambia by virtue of the British Acts Extension Act. 2 He further submitted that for the insurer to be liable, it must be demonstrated that the loss is a direct consequence of a peril insured against. He said the learned High Court Judge rightfully looked at the issue as to whether Mr. Havemann's amputations fell within the defined events covered by the policy. -J17- He said the appellant did not rebut the testimony of the expert witness i.e. PWl nor did it bring Dr. Munthali or Dr. Otienoto whose witness statements they had filed, to adduce evidence showing how the sepsis and ultimately DIC developed. He argued, in this regard, that the Judge was on firm ground when she held that Mr. Havemann's amputations were as a result of the severe bacteriological infection emanating from a compound fracture in the right thumb. That the accidental fall was a direct cause of the amputations. He argued further that interpreting the policy by isolating the disease from the fracture would defeat the very purpose ~f the proximat~cause rule. _ _>_ · It was further submitted that the proximate cause rule establishes the link between the thumb fracture and the development of the sepsis and ultimately DIC that led to the amputations of Mr. Havemann's limbs. In this regard, he argued that the court below had reasoned well. In the alternative, counsel argued that the principle that comes alive is that where the loss has resulted from an excepted peril covered by the contract, the insurers are liable. In support of this, -J18- he referred us to the cases of Fitton v. Accidental Death Assurance Co 10 and Issit v. Railway Passengers Assurance Co.11 As regards ground 3, Mr. Sikota argued that it was not a disputed fact that every insurance policy has territorial limitations as pronounced in the case of Becmocs Limited v. AON Zambia Limited and Goldman Insurance Limited. 6 He said the trial Judge was elaborate In arriving at the finding that the accident occurred in Zambia. Further that, it was never in dispute where . the COIIJ..l!ound fractur(Vaccurred. In tMs regard, he ·~gued . further · ->-· - :-;;_~~ -~ - .~ ~~ -, :",..~ . - . .. ::::~~ ,::~ :· - - - .:;~ .. ~-::~ : - - - .::_:,~~ :· -- - that the open fracture was the window through which the bacterial . . . : - infection entered and consequently the amputations became inevitable. Mr. Sikota concluded by stating that the third ground of appeal has no merit because it was not in dispute that the accident occurred in Zambia. He went on to state that the case of Marius Mwelwa v. Konkola Copper Mines and Another7 referred to by the appellant's advocates is inapplicable and without basis In this appeal. He finally prayed that the appeal be dismissed. -J19- .... __ . _ On the hearing of the appeal, both parties merely relied on their Heads of Arguments. Mr. Cornhill verbally replied to the respondent's advocates submissions by saying that this appeal is not only against the lower court's findings of fact but also findings of law as can be seen from the grounds of appeal. He said the first ground is against the lower court's finding of law which was based on a misapprehension of the pleadings and this has been amply demonstrated in the written Heads of Arguments. He went on to say that the second ground is against the court's ->-. . ~-. . .>-. . . .>-. . . ->- faihif~ 1:~~appl~ th~ ~1~~-1ii· . Drde~ tb'lT~bi~g th; is~u~wi~ethe; tff~ --:~ :· cause of injury fell within the perils provided for by the policy. He pointed out that on page 14 of the judgment, the court made findings of fact in the second paragraph which the appellant agrees with. However, she did not proceed to say whether the cause of the said injuries fell within the ambit of the policy as stated in the first paragraph on page 522 of the record. He stressed that in his view, those injuries did not fall within the defined events. He said it is an undisputed fact that without the open fracture, the infection would not have been there, but the policy is very clear that the insurer -J20- would only pay for injuries caused by violence which are independent of any other cause. Mr. Cornhill added that the respondent seems to have misunderstood the third ground of appeal. He said it is not in dispute that the accident occurred in Solwezi, Zambia. The appellant has admitted liability for that physical injury and adduced evidence of the discharge form. He further submitted that the appellant should not be criticized for having not adduced medical evidence because it's the plaintiff who ->-. i- -:~ : -- _beai~tge: :b]).rden ,:o&- ~oof_and~ tW©i- ~spond_ent -~s~c~_epteci ~ c~~ :· . . ~.>.. . ->-. .>-- .>-. ..,,._. medical evidence adduced by the plaintiff/ appellant. We have considered the written and oral submissions of the advocates concerned and the whole record of appeal which includes the judgment appealed against. We must at the outset point out that this appeal is actually based on points of law mixed with facts. On the first ground of appeal we are of the view that the court had looked at the pleadings in this case carefully on page J2 and J3 of the judgment. As she was analyzing the evidence before her, on page J14 in the third paragraph, she stated that "I do not accept the -J21- defendant's disposition that the amputations were caused by malaria for a number of reasons.'' On J9 of the judgment the court talked about DWl Dr. Ontieno 's report which singled out cerebral malaria as the cause of Mr. Havemann's problems. The Judge pointed out that DWl 's evidence was rebutted by PWl. Therefore, our understanding is that the Judge was not referring to the pleadings but the evidence when she said the sentence quoted above. We agree that the issue of malaria being the cause of the amputations was initially brought up by the plaintiff in its alternative claim, under paragraph 18.2 of the statement of claim ~ :~~;~ ·-::'!: .. - ·:~-before that s~tement of claifu was amende~f. _ Upon amlridment ~ .::=.~~ -,::,'!: :· -- - ~ .:;:,~ -::~ :· ·-- - that alternative claim was removed. The respondent answered this ~ -::~ ~ -~": :: . - ~ -~~~ ·:--'5- :· -~ - ,;_~~ .. in its defence as pleaded and in evidence. It is clear to us that respondent's evidence was at variance with its pleadings which the respondent's advocate has alluded to in the written arguments. We find that the lower court adjudicated on the whole case and did not at all misapprehend the pleadings. Therefore, we find no merit in the first ground of appeal and dismiss it. As regards the second ground of appeal, in the first paragraph on page J 14 the judge had this to say: -J22- ((In this report PWl stated) ((Having reviewed all Mr. Havemann)s medical records) I am of the opinion that the primary cause of his DIC) which necessitated the amputation of his limbs) was sepsis caused by severe bacteriological infection. The sepsis is the direct result of the open fracture sustained in his right thumb days before he presented to hospital.)) In the second paragraph on the same page of the judgment, the Judge accepted the aforementioned evidence of PW 1. The -.>..· appellant's .':1vocates in t;15~ir argumen_t'.)_-have ~oinJe._st out a _ -~~~ -:;-fi:i~am~rtYM 'ttn;· ef -i~;uf ~~~ i~w to ~tn~ ',;,eifett--that ~h~i~ut~-r is only liable for losses proximately caused by the peril covered by the policy as stated by the authors of Mac Gillivary on Insurance who also define proximate cause. The lower court's findings as to the cause of the amputations were to the effect that the compound fracture was the cause of the amputations. In our view, the compound fracture was indeed caused by a violent accident which was obviously external and visible. We shall not interfere with those findings because they were made on the right perception of the evidence on record. The Wilson Masauso 9 case applies . -J23- The learned Judge did not relate her findings expressly to the defined perils covered according to the Placing Slip and the Policy. However, her findings that the plaintiff had proved its case on the balance of probabilities, meant that she was satisfied that the amputations were within the definition of the word injury found in the Placing Slip and the perils covered by the policy. We have found it expedient to look at the technical aspects of this case in order to clarify our position. The technical question is whether the open fracture, sepsis, gangrene, DIC and all other r ., . .>-· ~9mpliG-ati_oils-- ~xcept r c:~re"i~al malar~a,. ~-that resu1t_e(-· in· the r . _.,.::.; ~ ·: " : •• _ "·"''- ~ · , ; :";:- . __ -. " """-;_.~ -: :~ . ,_.,._-; ~ -:~; ": ,_ __ _ _ cx<,-:~ 0.--;:-s .. = - s-- amputations, can be considered to have been proximately caused by the peril covered by the policy. In the case of Western Commercial Traveller's Ass'n v. Smith 12 Judge Sanborn stated as follows: "If the death was caused by bodily injuries affected by eternal violent and accidental means alone, the association was liable to pay the promised indemnity. If the death was caused by a disease which was not the -J24- result of any bodily infirmity or disease in existence at the time of the accident, but which was itself caused by the external, violent and accidental means, which produced the bodily injury, the association was equally liable to pay the indemnity. In such a case the disease is an effect of the accident, the incidental means produced and used by the original moving cause to bring about its fatal effect, a mere link in the chain of causation between the accident and the death, and the death is attributable, not to the disease, but to the causa causas, to the -11.ccident. alon~-" ->-. Of like import is lsitt v. Railway Passengers Assurance Company. 11 The court further held in Western Commercial Traveller's Ass'n v. Smith 12 that: "When death results from disease which follows as a natural though not necessary consequence of an accidental injury, it is within the terms of the accident certificate, the death being deemed the proximate result, -J25- not of the disease as an independent cause, but of the injury." The aforementioned case is similar to the present case in that the court dealt with the term of the policy namely "bodily injuries caused by external, violent and accidental means alone" which were covered by the respondents. These terms are on all fours with the words used in the Placing Slip and Insurance Policy alluded by the appellant herein, although instead of using the word alone, in this case the words; "independent of all other causes" are used. Which means the same as "._ ...... a~idental meansA!:lone." -<~ - - In the present case, there were complications such as DIC, gangrene and sepsis and severe malaria that followed as a natural though not necessary consequence of the broken right thumb i.e. a ) compound fracture, with the bone of second phalanx protruding through the skin. A notable difference between the present case and that of Western Commercial Traveller's is that in that case, the plaintiff died but in the present case the plaintiff survived but as a result of the injury he lost both legs below the knees and all four fingers on the right hand the ring finger, middle finger and the -J26- phalanx of his index finger on the left hand. Therefore in the same vein, we find in this case that the amputations were a proximate result, not of the said complications as an independent cause , but of the injury. It is undisputed that without the open fracture , the bacteriological infections and gangrene would not have occurred. There is certainly a link in the chain of causation between the accident and the amputations. In short, the in jury was not the first or last or sole cause but the operative cause. We therefore hold that the chain of causation did not break. H8:-)ii-ng looked at. Jthe insurance.~olicy, V<[e are>satisfied, that Ache ; ; :, , ~ -• ~-'(_ : _ r .:,;=-.,.,~ -, ~ <.._ : • _ r a:::-=-,► -• ~~ : · -_ , _:,;:,,►'<;-~ :• - - r -:::a:'\► -~_::'!;- : •- injuries •-; amputations were withinthe--rfaks covered by the policy. They were not within the perils exepted. The holding of Lord Cockburn CJ in Sinclair v. Maritime Passengers Assurance Company 5 alluded to by the appellant's advocates does not apply to this case for the reasons already given. It is clear from page J4 that the lower court had addressed the issue whether Mr. Havemann's amputations fell within the 'defined events' covered by the policy. -J27- PW 1 Dr. Alan Joseph Peters has been wrongly referred to as PW3 by the appellant's advocate. However, we accept their submissions that the record shows that PWl had not examined the patient. He had merely scrutinised the medical reports before him in order to formulate his own opinion as an expert. We therefore upset the trial Judge's finding that PWl relied on his own observations after physically examining Mr. Havemann. That finding is on P 12 of the record line 18. The appellant's suggestion that the bacterialogical infection, re_~lting into se:gf}is and ultimq.tely DIC ? is · ~ -·indeper:idenLAnd ~:::" ,► -~ : . . .. ~ ,~-=.c.,_►',,-~..w;_ :·· ~ ,:,;::, ~ ·,;'5- :·· - - ~ ,::."..-~ -,.:0,.,-'5- : . ·- int~rvemng cause uf tne injuries 1s reJected because the unshaken . ~ ,::::":,).; -· ~~ : . ... . . - evidence given by PW 1 under cross examination showed that there was a link between the accident and the bacterialogical infection. That evidence was as follows: "Sepsis that Havemann had, arose from the compound fracture he sustained after he fell. Sepsis is a medical condition. It comes about from the entrance of bacteria to the outside of the body as well as bacteria on the skin. When there is a fracture, -J28- and bacteria enters the skin, sespsis develops and spreads first from the local areas of the tissue area and then can break through into the blood stream and cause septicemia shock and DIC may develop. The accident and the bacteria are linked. The actual cause is the bacteria. The accident is the point of entry of the bacteria into the body .. " It is clear to us that had Mr. Havemann not fallen and sustained the said injuries, he would have had no wound through which the bacteria would have penetrated his body. Furthermore, the p~ximate cause ~lle applies. ~ · In the case of JJ Lloyd Instruments limited v. Nothern Star Insurance Company Limited, (The Miss Jay Jay) 13 which is cited by the respondent herein, Misty J considered liability under a maritime insurance where damage was suffered when the sea state was within what might reasonably be anticipated. We do not see how this case can be applied to the case before us because the facts are very different. -J29- The respondent's advocates in their response to the second ground of appeal referred to the Marine Insurance Act of 1906 1 which is applicable to our jurisdiction by virtue of the British Acts Extension Act, Chapter 10 of the Laws of Zambia. 2 We find the Act inapplicable to this case because this case does not involve Marine insurance. For the reasons given above , ground two also fails. As regards ground 3, the appellant's bone of contention as we have understood it is that the insurance policy has territorial limitation _ to ~~~h.i,~,:·· Demo~£.~~~< ~epubli~~~-J?~/?ongo · ~ ~~ .. ~¥~uritani~:c~ -·~~: : · -- ·- -- -- -- - -- - .,,,- - .,,,- .,,,- .,,,- ->-. ->-. . . ->-. .. ->-. . .>-. .,,,- - --- . However, the respondent did not adduce evidence to show where the bacterial infection, which caused the sepsis and subsequent amputations, occurred. The lower court in dealing with the issue of territorial limitations of the insurance policy, relied on the case cited by the appellants i.e. the case of Becmocs Limited v. AON Zambia Limited and Goldman Insurance Limited. 6 We are of the view that it was not in dispute that the policy did extend to Zambia. The court was therefore on firm ground when it found accordingly on page J4. -J30- The appellant's submissions that the insurance policy has territorial limitation to Zambia, Democratic Republic of Congo and Mauritania was considered by the lower court and it was not rejected. Be that as it may, we have observed that in the second paragraph on page J4 the learned trial Judge found that; "In casu the accident occurred in Zambia.... Therefore the insured is covered.}} The court did not specifically find as suggested by the appellant _ that; c" , : : ; 'I~ -.:::~ : "The injuries to Mr. Havemann occurred in Zambia." But impliedly that was the finding. On page J 14 the court in accepting the evidence of PW 1 regarding the probable cause of Mr. Havemann's amputations said: "I therefore accept that the most probable cause of Mr. Havemann }s amputations was the severe bacteriological infection} the source of which was the compound fracture in the -J31- right thumb, which condition led to multi organ failure, shock, a DIC and consequent inschemia of his lower and upper limbs, and because the broken thumb became septic that it had to be amputated, but the sepsis spread to the other limbs which eventually had to be amputated to preserve Mr. Havemann's life." We are of the view that the Judge rightly found that the accident occurred in Zambia and we have already said we will not interfere with her findings of fact regarding the cause of the amputations. Since ~ findings shof/ that tl).ere wAs no break inA. the chain of ~-· - causation from the time of the accident to the - date of the .,,.- ~ .;','\}.~-,:;--:: :· ~ ,;_~~ ·-;:'!_- . .;~~ ·:-"';:- :· -- ~ ,~i-.~ -: ~ :· - - ~ ,~ '>~ -,~~ .~ : -- amputations, the issue of where exactly the wound became septic is neither here nor there. The crucial point is that from the date of the accident to the date of the amputations, the wound or open fracture had not healed. It's therefore of no consequence that the amputations, were carried out in South Africa. We reiterate our findings on proximate cause. The plaintiff had therefore proved his case on a balance of probabilities that the bacterial infection occurred in Zambia. Therefore we have no difficulty in finding that the losses occurred within the territorial limits of the policy. -J32- -~~~~ - ., Since the lower court had made a well reasoned judgment, the case of Marius Mwelwa v. Konkola Copper Mines7 is inapplicable. The sum total of our findings is that there is no merit in the appeal which we dismiss with costs. The costs are to be taxed in default of agreement. The lower courts judgment is upheld. For the sake of clarity, the respondent is entitled to the claims endorsed on the amended statement of claim . . ;:=.~; -~ -'5 :_ - ,. -~~~ -:;-'5 .:· - -- ,:.:=.~ ~~ : -- - - ._;_=.~ -::----~ :· Dated this 29th day of March, 2017. - C. K. MAKUNGU COURT OF APPEAL JUDGE ~ ~ \,_.---- ~ .... _ ........................................ . M. M. KONDOLO COURT OF APPEAL JUDGE -J33-