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Determination
Case number | 12-00-1047579 |
Financial firm | Mitsui Sumitomo Insurance Company Limited |
Case number: 12-00-1047579 12 August 2024
The complainant held a travel insurance policy with the financial firm (insurer) for herself and her partner, JC, for an overseas trip between 8 and 18 October 2023. JC is a beneficiary under the policy.
On 17 October 2023, JC suffered from decompression sickness following a scuba dive. As a result, JC has incurred significant medical and additional travel expenses.
The insurer has declined the claim on the basis that JC was participating in an activity that is excluded under the terms and conditions of the policy, being scuba diving to a depth of greater than 30 metres.
JC disputes that the scuba dive over a depth of 30 metres caused his illness. He seeks the insurer pay the claim.
Yes. I am satisfied the insurer has proven an exclusion applies to decline the claim, being that JC’s decompression sickness was related to participating in a sport or activity that is excluded under the terms and conditions of the policy.
The outcome is fair because the insurer is only required to pay claims that are covered under the terms and conditions of the policy. JC participated in an activity that was precluded by the terms of the policy and became unwell as a result. It would be unfair to require the insurer to pay a claim in circumstances where it has not agreed to cover the risk associated with that activity.
This determination is in favour of the insurer. The insurer is not required to take any further action.
Yes. I am satisfied the insurer has proven an exclusion applies to decline the claim, being that the JC’s decompression sickness was related to participating in a sport or activity that is excluded under the terms and conditions of the policy.
When making a claim, the complainant has the onus of establishing she suffered a loss for which her insurance policy provides cover. The complainant must establish this on the balance of probabilities (i.e. that it is more likely than not).
If a claimable loss is established, the insurer has the onus of establishing, on the balance of probabilities, the application of any exclusion it relies on to reduce its liability.
The complainant’s policy is made up of a certificate of insurance (COI) and product disclosure statement (PDS), which form the terms of cover. There is no suggestion she did not receive these documents, so I am satisfied the insurer is entitled to rely on them.
The PDS provides a broad range of cover. This includes cover for medical and other expenses incurred outside of Australia (section B1).
The PDS also has contains exclusions. Amongst others, the policy excludes cover for any claim relating to any sport that is listed on ‘Table of excluded sports and activities’, including scuba diving to a depth of greater than 30 metres.
See section 3.2 below for the relevant policy terms.
It is not in dispute that JC suffered decompression sickness after two scuba dives on 17 October 2023. The first dive was up to a depth of 39 metres and the second dive was to a maximum depth of 29 metres.
JC felt unwell after the second dive and fainted. A doctor was then called which resulted in JC incurring significant medical expenses overseas.
Given JC has incurred medical and other expenses outside of Australia, I am satisfied that a valid claim has been made under the policy.
Once the complainant had established a valid claim under the policy, the onus shifts to the insurer to show an exclusion applies to defeat the claim.
The insurer says the complainant’s claim is excluded under the terms and conditions of the policy, specifically under section 20 b. and c.
Throughout the claim and AFCA process both parties have provided medical evidence.
In support of its position, the insurer has provided a medical report from Dr EG who conducted a medical review of the complainant’s file. The review identifies three key risk factors which contribute to decompression illness because of scuba diving - this includes:
Dr EG says that as pressure increases, the risk of accident increases too. Dr EG concluded the decompression illness in this case occurred due to the combination of the first dive of 39 metres with the second dive of 29 metres.
The insurer’s position is that the combination of two dives was responsible for causing the complainant’s decompression sickness (with only the first dive being excluded under the terms and conditions of the policy).
The complainant has also provided a report from Dr MN which says:
…
The risk of decompression sickness (DCS) has a very strong correlation with how effectively the body manages decompression stress after a series of dive exposures. Here, "exposure" refers to the entirety of a day's diving activities, as each dive conducted within less than 12 hours of the previous one compounds the overall decompression stress. This concept is the underlying reason why we account for "repetitive dives" as influenced by the previous ones and the surface interval between them.
Notably, on October 15 and 16, your friend engaged in single dive days. However, on October 17, he undertook two dives (what is commonly known as "a two-tank dive"), one reaching 39 meters and the other 29 meters. This "exposure" can be considered as moderately provocative, making it difficult to attribute the onset of symptoms solely to the last dive. To draw an analogy, just as consuming several shots of tequila incrementally affects one's state, we cannot pinpoint the last shot as the sole cause of sickness. The cumulative effect of repetitive dives underscores the importance of considering the entirety of diving activity when assessing risk factors for DCS.
When having regard to whether the insurer can decline the claim or not, I must refer to the policy terms and conditions, set out in the PDS.
This policy says the insurer can decline any claim relating to any sport or activity, unless that sport or activity is covered under the table of covered sports and activities. The table of covered sports and activities includes scuba diving, but only to a depth that is not greater 30 metres.
It is not in dispute that JC was an experienced diver, who participated in two dives on 17 October 2023. One of these dives was to a maximum of 39 metres. He then had a one-hour break. The second dive was to a maximum depth of 29 metres. After this second dive, he felt unwell.
There is no conclusive medical evidence that confirms which dive caused the decompression sickness which resulted in JC incurring overseas medical expenses. The insurer says it was a combination of the two dives (with one being excluded under the policy) that caused the sickness.
The medical evidence provided by both parties supports this.
The insurer has said that if JC had only undertaken one dive to a depth of less than 30 metres and then developed decompression sickness, this would have been covered. I agree with this assertion. However, this is not the case here.
The complainant was provided with a copy of the PDS which sets out the basis upon which the insurer is prepared to offer cover. That is, the insurer is only prepared to accept a risk associated with a medical condition arising from a complainant scuba diving to a depth of less than 30 metres. JC dove to a depth greater than that.
The complainant says the depth of a dive is a risk factor, but there is no conclusive evidence establishing that the dive over 30 metres was the sole cause of JC’s decompression illness. She also says the exclusion clause does not explicitly specify a requirement for causation (i.e. that the dive caused the decompression sickness), but rather a relationship.
Whilst I agree with the complainant’s submission, I consider that the insurer has made out that a relationship exists between the dive that occurred over 30 metres and the development of the decompression sickness. This is because both experts indicate that decompression sickness cannot be attributed to the last dive before the complainant became unwell, but likely occurred because of a cumulative effect of dives undertaken that day, and possibly the days before. Dr EG also indicates that depth of a dive is a factor in the development of decompression sickness and the complainant has not provided any information to dispute this.
Ultimately, the insurer must prove, on a balance of probabilities, that the exclusion applies. In this case, I consider the insurer has met that requirement given that JC had participated in a dive that was over 30 metres, the same day he felt unwell and required medical treatment. The complainant has not been able to provide any evidence to suggest that the dive over 30 metres did not cause or contribute to JC’s decompression sickness. The insurer is therefore entitled to decline the claim.
The outcome is fair because the insurer is only required to pay claims that are covered under the terms and conditions of the policy. JC participated in an activity that was precluded by the terms of the policy and became unwell as a result. It would be unfair to require the insurer to pay a claim in circumstances where it has not agreed to cover the risk associated with that activity.
AFCA has determined this complaint based on what is fair in all the circumstances, having regard to:
The respective parties have completed a full exchange of the relevant information, and each party has had the opportunity to address any issues raised. We have reviewed and considered all of the information the parties have provided.
While the parties have raised a number of issues in their submissions, we have restricted this determination to the issues that are relevant to the outcome.
AFCA is not a court of law. We do not have the power to take or test evidence on oath, or to require third parties to give evidence.
When we assess complaints, we consider:
We give more weight to documents created at the time the events occurred. If there are no relevant documents, we will decide what most likely occurred based on the available information.
If there are conflicting recollections and these are evenly weighted, we may find that a claim cannot be established.
GENERAL EXCLUSIONS
X What you are not covered for
General exclusions apply to all sections of this policy.
20. Any claim relating to:
…
b. any sport or activity unless that sport or activity is covered under the Table of covered sports and activities Section on pages 43-46, but only to the extent that cover is provided under that table.
SECTION B1 – MEDICAL AND OTHER EXPENSES OUTSIDE OF AUSTRALIA
✓ What you are covered for
We will pay up to the amount shown in the Table of benefits for the necessary and reasonable costs incurred outside of Australia as a result of you becoming ill, being injured or dying during your trip. This includes:
• Reasonable extra accommodation (room only) and travel expenses (economy class unless a higher grade of travel is confirmed as medically necessary) to allow you to return to Australia if this is necessary due to medical advice; and
• Reasonable extra accommodation (room only) and travel expenses for someone to stay with you and travel home with you if this is necessary due to medical advice; or
• Reasonable accommodation and travel expenses for one relative or friend to travel from Australiato stay with you (room only) and travel home with you if this is necessary due to medical advice)
Table of excluded sports and activities
Please be aware that this is not a definitive list of excluded activities but is intended to provide examples of sports and activities where cover is not available under this policy in any circumstances.
