Personal accident insurance

• How the policy was sold

  Depending on the type of sale, the key documents we’ll look for are:

  • a copy of the sales script the business would have used
  • copies of any marketing literature posted or given to the customer
  • the application form
  • any fact find or recommendation letter mentioning the cover
  • a sales quote
  • key features
  • policy terms
  • a copy of the customer’s bank statement showing the transaction

  We’ll look at the documents at the point of sale and decide if it was:

  • clearly explained how the policy worked
  • highlighted any key exclusions or limitations

  If the policy wasn’t clearly explained in the documents given to the customer, we may conclude the policy was mis-sold.

  Where a customer says they have cover elsewhere, this wouldn’t necessarily mean the policy was mis-sold – especially if the sale was non-advised. We’d need to consider the information carefully to make sure it was clear and allowed the customer to make an informed choice about purchasing the policy. If the sale was advised, we’d consider what other insurance cover the customer had and whether you were aware of this before you sold the policy.

  If the customer says they didn’t know they had the policy, we’d need to think about whether you did enough to make the customer aware of it, and whether the customer agreed to the sale.

  The customer’s bank statements might be helpful in this situation to see how clear their direct debit was. This will help work out whether we think it’s likely the customer knew about the policy.

• Group schemes

  Employers can complain to us about the sale of a group policy if they meet the definition of a micro-enterprise.

• Your definition of ‘accident’

  We’ll look at how your policy defines an accident. Accidents are central to all claims, but we often find the word ‘accident’ isn’t actually used in the policy wording. Some insurers use their own, more specific definition. For example, a policy might say the customer must suffer death or bodily injury as a direct result of an unexpected, external, violent and visible cause.

  Some policies define ‘accident’ as a sudden, unexpected and specific event, external to the body, which occurs at an identifiable time and place.

  If you’ve given a specific definition, we’ll need to consider whether the customer’s accident falls within that definition. If it doesn’t, we’ll usually say it’s fair for you to decline the claim.

• External to the body

  Insurers often say the cause of an accident must be external to the body. This means that an accident caused by sudden medical events like heart attacks and strokes aren’t covered, because they’re not external to the body.

  But sometimes a customer will say their accident was caused by an external force acting on their body, or by an external activity they were taking part in. For example, a customer may say they injured their back while lifting a heavy object, or tore a muscle while jogging. We need to think carefully about what actually caused the injury – and whether that cause can correctly be described as external to the body.

  So if a customer bent down to tie their shoe laces and pulled a muscle in their back, then the cause of injury was the customer bending forward, not the shoe laces applying external force to their body. So we can’t reasonably say there was a sufficient external cause.

  Similarly, a jogging injury caused by tripping over a stray branch has an external cause – the stray branch. But tearing a muscle in the regular course of jogging doesn’t have an external cause – the injury just happened in the course of running.

• If you haven’t given a definition of ‘accident’

  If there’s no definition of ‘accident’ in a policy, we’ll apply a definition of the word as it’s commonly understood – an unforeseen or unexpected and unfortunate occurrence.

  We’ll then look at whether the circumstances of the case fit within that definition. We need to be satisfied the circumstances fall into at least one of the following categories:

  The injury was the natural result of an unexpected cause

  This is where something unexpected happens – and the natural consequence is an injury.

  For example, being struck by a car while walking on the pavement is an unexpected event – and an injury is a natural consequence

  The injury was the unexpected result of a natural cause

  This is where something normal happens but with unexpected and harmful results. For example, preparing vegetables in the kitchen and accidentally slicing off a finger. The activity of slicing vegetables is one that’s generally safe and ‘natural’, but an injury may be caused by unexpectedly slipping with the knife.

  If the circumstances fall into at least one of these categories, we can say the circumstances were accidental.

  But, if an injury results naturally from an event like jumping from the roof of a tall building and suffering a broken leg, we wouldn’t consider this to be accidental.

• Did the accident cause the injury?

  Once the fact of an accident has been established, we’ll look at whether the accident actually caused the death, disablement or bodily injury being claimed for. Most policies need the accident to be the sole and direct cause of whatever injury followed.

  But when serious injuries occur, there may be several things happening at the same time. For example, a heart attack could cause a car accident – or a car accident could cause a heart attack. Or it could be that the two events are completely unrelated.

  We’ll review the evidence and try to reconstruct the chain of events. Where we can’t be sure what happened, we’ll make a decision on what we think most likely happened. We’ll then need to decide whether the original cause of the accident led to the injuries suffered by the customer.

• How we approach contributory causes

  Policies don’t usually cover injuries caused by sickness, disease or any naturally occurring condition or process. This means insurers turn down claims on several grounds where there are additional causes.

  An insurer may say:

  • factors other than the accident caused the death or bodily injury – for example, an underlying disease or degenerative condition
  • the accident didn’t cause, but brought forward, the death or bodily injury that would have happened anyway because of an underlying medical condition
  • the customer was already disabled and the accident just increased their level of disability

  When declining claims on these grounds, insurers will often refer to a customer’s medical history, medical reports, death certificate and the coroner’s report. We’ll look at the evidence carefully to decide how far we think the accident actually contributed to the injury.

  We’ll usually ask you to meet the claim if the accident:

  • caused death or injury without any additional contributory causes
  • was a significant factor in the death or bodily injury

  We wouldn’t expect you to meet the claim if the accident:

  • wasn’t a significant factor at all
  • didn’t cause or contribute to the death or injury

  Paying part of the claim

  Where we don’t think you should pay the full benefit but it’s fair and reasonable to pay a proportion of it, we’ll assess the extent to which the death or bodily injury could reasonably be attributed to the accident. We’ll usually then tell you to pay that proportion of the benefit.

  If we see medical evidence suggesting that the accident caused 25% of the injury, but a degenerative condition caused 75%, we can tell you to pay 25% of the benefit.

• The accident brought forward the effects of – or worsened – an existing disability

  In some cases, it might be that the accident accelerated the effects of a condition the customer already had. Or an existing condition meant the customer would have died or suffered disability at some point in the future – even without the accident.

  For example, a customer with severe arthritis might become permanently and totally disabled within ten years because of their condition. But an accident may have brought those effects forward to the extent that the customer is now permanently and totally disabled.

  Where the accident brought forward the effects of an existing injury or disability, we’ll assess the available medical opinion on how far the accident brought it forward. We’ll usually then tell you to pay a proportion of the benefit in line with this.

  For example, if the customer’s likely working life is shortened from 40 to 30 years by the accident, we might tell you to pay 25% of the benefit – to cover the years lost as a proportion of their total working life.

• Permanent and total disability

  Policies contain different definitions of 'permanent and total disability'. In most cases, the disability has to prevent the customer from working. A customer would usually need evidence to show that they’re totally unable to perform either:

  • Their own occupation
  • Any occupation for which they are suited because of their education, training or experience
  • Any occupation whatsoever

  We’ll look at the circumstances of the case and any relevant medical opinion to decide whether the customer meets the definition used in the policy.

  We’ll also look at what’s fair and reasonable in the circumstances. So we’ll generally say that ‘any occupation’ would mean ‘any suited occupation’, taking into account the customer’s education, training, or experience.

  But where the policy provides benefit only when the customer is unable to carry out ‘any occupation whatsoever’, we’re likely to say this doesn’t mean any suited occupation. If the customer was unaware of the restrictive nature of the policy, this may be a sales issue.

• Loss – or loss of use

  Policies often cover the loss of a limb, or the loss of use of that limb. They may also cover the loss of a particular sense like sight or smell.

  Sometimes an insurer will say the customer’s injuries aren’t serious enough to fall under the policy terms. For example, a customer who suffers significant damage to their arm may still be able to use their arm to some extent.

  When dealing with complaints involving these injuries, we’ll look at any specialist medical opinion on the extent of the customer’s injury. We'll think about whether you should pay the claim because the extent of the injury means it could reasonably be classed as a 'total' loss – or whether the body part still retains a reasonable level of use.

  Some policies already include cover for partial loss. But even where a policy doesn’t cover partial loss, we’ll consider whether the customer had a reasonable expectation that the policy would pay out if an accident caused them a life-changing disability. That would usually mean looking at how clearly the cover was explained in the policy. We’ll consider this and the medical evidence to decide what proportion of benefit – if any – you should pay.

• Is death or bodily injury ‘accidental’ if it occurs during surgery?

  Insurers sometimes decline claims for death or bodily injury that occurs as a result of surgery. They may say the:

  • death or injury wasn’t accidental under the terms of the policy
  • accident wasn’t the sole and direct cause of the death or injury

  All surgeries involve some risk – so we try to take a common-sense approach. We’ll consider whether:

  • the risks were explained to the customer
  • something happened that was unexpected, unplanned or as a result of medical negligence either before, during or after the surgery

  This usually puts cases into one of two categories:

  • injuries that are a natural (but unfortunate) result of the operation. For example, there’s a risk that cutting into the body might result in a fatal infection. This is a known risk of surgery and is usually disclosed to the patient beforehand
  • injuries that, while a possible risk, are not the natural result of the operation. For example, where the surgeon ends up cutting into the wrong part of the body. This may be as a result of negligence or something unexpected or unplanned happening during the procedure

  We usually think it’s reasonable for insurers to pay claims that fall into the second category. But we need to review the medical evidence carefully to decide which of the two categories applies.

• Are there any specific exclusions that apply?

  Personal accident policies usually include several specific exclusions. It’s for an insurer to apply any exclusions to your claim and show us why they’ve done this.

  It’s common for exclusions to apply to injuries caused by:

  • the consumption of alcohol and/or drugs
  • a customer ‘recklessly’ exposing themselves to danger
  • deliberate self-inflicted injuries
  • specific excluded activities, like driving a vehicle with less than four wheels, diving, mountaineering, rock and cliff climbing, pot-holing, parachuting, professional sports, boxing and racing
  • injuries as a result of war, terrorism or invasion – as well as for claims arising from serving in the armed forces (although specialist forces personnel policies are available)

  We’ll need to review the claim and see if the insurer has given enough evidence to show the exclusion applies in particular circumstances.

• Alcohol and/or drugs

  Where there’s a dispute about alcohol or drug involvement in the cause of an accident, we need to consider whether the accident happened while someone was simply under the effect of alcohol or drugs – or whether the consumption of alcohol or drugs directly caused the accident.

  To rely on this exclusion, you’d need to show that the:

  • accident was unlikely to have happened without the consumption of alcohol or drugs
  • customer didn’t escape the consequences of an accident as they may otherwise have done, because of the alcohol or drugs in their system

  We’re unlikely to say it’s fair for you to rely on an exclusion where the customer slipped on a wet floor after drinking two pints of beer. However, the opposite would be the case for a customer who stumbled into a busy road and was hit by a car after a night of heavy drinking or drug taking.

  We’ll also take into account whether the customer anticipated the risk of death or bodily injury and, if not, whether they should have reasonably anticipated this risk.

  If we think the accident probably would have happened whether the customer was drunk or not, we might decide it’s unfair for you to rely on the exclusion.

• Reckless exposure to danger

  Some policies have exclusions relating to deliberate self-inflicted injuries or ‘reckless exposure to danger’.

  We’d need to decide whether a particular action amounts to a reckless exposure to danger. For example, although some people may argue that cycling without a helmet is a reckless exposure to danger, others might say it’s common practice and part of ordinary life. On the other hand, you couldn’t argue the same point for base-jumping or harness-free rock climbing.

  We try to take a common-sense approach to decide whether we think the customer recklessly exposed themselves to danger – and therefore whether you relied on the exclusion fairly.

• Deliberate self-inflicted injury and suicide

  If you reject a claim because you believe the customer’s injury was deliberately self-inflicted, you’d need evidence to show this. We’ll consider all the available evidence as well as the customer’s testimony to decide what we think happened and whether you’ve applied your exclusion fairly.

  If you want to rely on an exclusion for death caused by suicide, you need to provide evidence showing – on balance – that suicide was the most likely cause of death.

  A coroner’s report will often play a part in this assessment. But in order for a coroner to record the cause of death as suicide, they have to be satisfied beyond reasonable doubt that suicide was the cause of death. So if a coroner does return a verdict of suicide, we wouldn’t say the death was accidental and covered by a personal accident policy. However, if a coroner records a verdict of accidental death or an open verdict, it falls to us to decide what happened, on the balance of probabilities.

  You should take into account the coroner’s findings and any other evidence to decide whether the customer’s death was more likely than not the result of suicide.

Putting things right

• Complaints about mis-selling

  If the complaint is against the insurer then we’d ask them to cancel the policy and refund the premiums the customer paid, with interest at 8% simple per year, less any tax due.

  If the policy was sold by a broker or IFA, we’d ask them to pay compensation equivalent to the amount the customer paid in premiums. This is because the broker or IFA doesn’t keep the premiums – the premiums are passed on to the insurer.

  Sometimes, we might think a policy has been mis-sold but we’re satisfied the customer hasn’t been disadvantaged, so we might think the customer would still have bought the policy and therefore haven’t lost out as a result. In these cases, we might consider making an award of compensation for any distress or inconvenience that your mistake has caused the customer.

  In some cases, we may tell you to pay a claim if we decide an exclusion or restriction was unfair or unusual and wasn’t brought to the customer’s attention – or if the customer could have bought a policy elsewhere which would have covered their claim.

  We may decide the mis-sale meant that your customer relied on statements and representations made by you. In these cases we may say that compensation should be paid either for the distress and inconvenience caused to the customer, or for the full amount of their claim under the policy.

• Complaints about claims issues

  Paying interest

  Where we decide that you’ve wrongly turned down the customer’s claim and they’ve been deprived of money, we’ll usually tell you to pay compensation at our normal rate of 8% simple per year, less any tax due.

  In some situations, the claim under the policy may be delayed – for example, in claims for accidental death, the estate of the person who has died may not be aware there’s a policy in place. In these cases, we generally say the interest is payable from the date that you would’ve accepted the claim – rather than from the date of the death or bodily injury. This is to reflect the fact that you can’t accept a claim you’re not aware of.

  Compensation for claims handling delays

  We’d expect you to handle claims as quickly as possible. But we also take into account that delays are often unavoidable if you’re waiting on information from a third party (such as a GP or medical specialist) before you can make a decision.

  However, if we think you’ve unnecessarily delayed assessing or accepting a claim, or have not been proactive in chasing third parties for information, we’d consider making an award to reflect the delays and worry this may have caused the customer.

  If the complaint is brought by the estate then it’s unlikely we would make an award for delays.

  Compensation for the effect of a claims decision

  Your decision to decline a personal accident claim may mean the customer has lost out on the use of a lump sum payment. If we later conclude that you should have accepted the claim, we’ll award interest on the claim payment.

  Any additional compensation award would depend on the circumstances.