Keating v New Ireland Assurance Company Plc

• Jurisdiction: Ireland
• Judge: McCarthy J.,,WALSH J.
• Judgment Date: 01 January 1990
• Neutral Citation: 1989 WJSC-SC 1808
• Court: Supreme Court
• Docket Number: [1987 No. 8054 P]
• Date: 01 January 1990

KEATING v. NEW IRELAND ASSURANCE CO LTD

KEATING

- V -

NEW IRELAND ASSURANCE COMPANY LIMITED

1989 WJSC-SC 1808

(152/89)

THE SUPREME COURT

Synopsis:

INSURANCE

Life

Insured - Obligation - Material facts - Disclosure - Condition of moderately severe angina when policy issued - Condition not known by insured - Insurer not informed about angina - Death of insured - Insurer not entitled to repudiate policy - Warranty of fitness not given by insured - (152/89 - Supreme Court - 6/12/89) [1990] ILRM 110

|Keating v. New Ireland Assurance Co.|

Citations:

DUNNE V NATIONAL MATERNITY HOSPITAL 1989 ILRM 735

ARO ROAD & LAND VEHICLES LTD V INSURANCE CORPORATION OF IRELAND LTD 1986 IR 403

CHARIOT INNS V ASSICURAZIONI GENERALI 1981 IR 199, 1981 ILRM 173

THOMSON V WEEMS 1884 9 AC 671

MACGILLIVRAY & PARKINGTON ON INSURANCE LAW 8ED PARA 732 & 737

DUCKETT V WILLIAMS 1834 2 CM 348

JOEL V LAW UNION & CROWN INSURANCE CO 1908 2 KB 863

ZURICH GENERAL INSURANCE CO V MORRISON 1942 1 AER 529

ANDERSON V FITZGERALD 1853 4 HLC 484

ROSS V BRADSHAW 1 BLACK W 313

MACDONALD V LAW UNION 1874 9 QB 238

REID & CO V EMPLOYERS" ACCIDENT 1898 SC 1031

1 Judgment of McCarthy J.,delivered the 6th day of December 1989 [HAMILTON CONC FINLAY & HEDERMAN AGR]

2 The insurer appeals against an Order of the High Court (Egan J.) that the plaintiff do recover from the insurer the sum of £35,000.00together with interest on foot of a claim made by the plaintiff pursuant to a Policy of Insurance dated the 14th June 1985 on the life of her husband who died on the 14th December 1985. The insurer repudiated the claim on two grounds:-

3 (1) The non-disclosure by the insured, now deceased, of a material fact, to wit, that he was suffering from Angina.

4 (2) That the Policy being conditional upon full and true disclosure having been made in the proposal for insurance that, irrespective of non disclosure, the existence of the condition of Angina at the time of the proposal and of the issue of the contract of insurance invalidated thepolicy.

The Facts

5 The late James J. Keating was a Building Contractor living with his wife and family at Daingean, Co. Offaly. At sometime in March 1985 he went to see his General Practitioner, Dr. Kidney, in respect of a stomach complaint. Dr. Kidney referred him to Dr. Taaffe at Tullamore Hospital, and he sent Mr. Keating to Dr. Gearty, a Cardiologist in Baggot Street Hospital, Dublin, where he was seen on April 11th 1985 and later admitted for investigation on April 25th to 27th. As early as the 12th April 1985, Dr. Gearty had told Dr. Taaffe that Angina was likely although the complaint was of recurring epigastric discomfort. On admission to hospital Mr. Keating had extensive cardiac investigations including a stress E.C.G. and an Angiogram. He was prescribed two drugs which were specific for Angina, the prescription being conveyed to Dr. Kidney by letter of the 7th May. Whilst it was Dr. Gearty's "usual practice .... to explain the investigations in prospect" (335) Dr. Gearty was unable to state that he had, in fact, so informed James Keating who signed a consent form for the purpose of theAngiogram.

6 Dr. Kidney who, on the 23rd March 1985, referred Mr. Keating to Dr. Taaffe, did not see him again until the 16th July and, up till that date, had not informed Mr. Keating of what had been conveyed to Dr. Taaffe by Dr. Gearty by letter of the 7th May 1985.

7 On the 16th May, Mr. Keating and the plaintiff, his wife, had made cross proposals to the insurer for a whole life insurance on both their lives, this being done by a form in which the details were inserted by a representative of the insurer, J. Smyth, who arranged a medical examination as a result of which neither proposer was asked to answer a question on the form - "Have you had medical investigation, treatment or advice of any kind in the last 5 years?" A medical examination of both proposers was duly arranged and carried out on the 28th May 1985 by Dr. K. Duffy of Daingean, who, in fact, was the family General Practitioner although Mr. Keating attended another General Practitioner - Dr. Gibney. Dr. Duffy recorded on the appropriate form provided by the insurer the several answers given by Mr. Keating, the record being Dr. Duffy's summary of the information given to him.In answer to the question - "For what ailments and injuries, since childhood, have you had medical or surgical advice?", it was stated "epigastric discomfort - 1985 - two days - Dr. Geraghty (sic) Baggot Street Hospital - Nil abnormal discovered" and, after a denial that there was any affection of the heart, blood or circulatory system, in answer to a question about the stomach, intestines, or abdominal organs, - "No - apart from epigastric discomfort". Dr. Duffy, in his report which classified the proposer as a first class life, remarked "knowing him for 10–12 years I would say he is nervous of medical examination and this probably accounts for his slight elevation of B.P. He was checked by Dr. Geraghty (sic) in Baggot Street Hospital this year and obviously had clear cardiacassessment."

8 The prescription for drugs given by Dr. Gibney, a junior assistant to Dr. Gearty, was transcribed by Dr. Kidney onto his own headed notepaper shortly after the stay in Baggot Street Hospital. Mr. Keating did not know the nature of the tablets nor their purpose; his wife was not aware of her husband having a heart condition of any kind. Dr. Gearty (370) thought "he should have known that the whole area ofinterest was the heart and that we were dealing with X-ray pictures of the heart and we were treating him with tablets for the heart...."

9 The learned Trial Judge found as a fact that the deceased did not know that he was suffering from any heart condition, Angina or otherwise. Ground No. 4 of the grounds upon which the appeal is founded contended that on the evidence it was not open to the learned Judge to find as a fact that at the time of execution of the policy on the 14th June 1985 the deceased did not know he was suffering from Angina.

10 In the course of the hearing of this appeal the issue raised by this ground was compared to the question as to whether, in the event of the trial being before a judge and jury, the question of the deceased's knowledge would have to be left to a jury. Counsel for the appellant correctly conceded that such would be the case. That being so, in accordance with the jurisprudence of this Court over many years and identified most recently in Dunne -v- National Maternity Hospital &Others (1) there being evidence to support the finding made, this Court cannot interfere with the finding of primary fact.

Non-Disclosure of a Material Fact

11 The materiality of the condition of Angina is not in doubt; the deceased died from the underlying condition. The insurer contends, however, that there is further evidence of such non-disclosure in that

12 1. The deceased had been seen by Dr. Taaffe at TullamoreHospital.

13 2. He had undergone certain tests - the stress E.C.G. and theAngiogram.

14 3. He had been prescribed medication.

15 4. He had been instructed to come back for a check-up in 6months.

16 5. He had Angina.

17 The deceased did tell Dr. Duffy of his visit to Baggot Street Hospital under the care of Dr. Gearty and Dr. Duffy concluded that there had been a clear cardiac assessment. There is no positive evidence that the deceased had been given any drugs consequent on Dr. Gearty's direction much less that he, the deceased, knew the nature and/or purpose of such drugs. The answers recorded by Dr. Duffy must be read in the light of the insurer's decision to have a medical examination which obviated the need to answer the questions I have quoted earlier in thisJudgment.

18 The insurer might well contend that the deceased ought to have known that there was some problem arising with his heart; the onus, however, of proving that he did know lies upon the insurer; it is not sufficient to prove that the ought to have known. The fact that the three doctors concerned did know does not impute knowledge to the deceased, to whom the medical examiner for the insurer (Dr. Duffy), was enjoined by the examination form to give no information as to the result of the examination.

19 The insurers were not informed of these material facts; was it a non-disclosure? One cannot disclose what one does not know, albeit that this puts a premium on ignorance. It may well be that wilful ignorance would raise significant other issues; such is not the case here. If the proposer for life insurance has answered all the questions asked to the best of his ability and truthfully, his next-of-kin are not to be damnified because of his ignorance or obtuseness which may be sometimes due to a mental block on matters affecting one's health.

20 Support for this view is to be found in my Judgment, with which Walsh and Hederman J.J. agreed, in Aro Road andLand Vehicles Limited -v- Insurance Corporation of IrelandLimited (2). In that case, as in this, reliance was placed on the observations of Kenny J., in Chariot Inns -v- AssicurazioniGenerali (3). Chariot Inns was, like this, a proposal form case; the decision turned upon the determination of what is material; such is not the issue here. The Aro Road and Land Vehicles Limited case was decided upon a preliminary point as to materiality and, accordingly, the expressed challenge to the reasonably prudent test as outlined in Chariot Inns did not arise.

The Legal Basis

21 Section 2 of the Policy reads:-

"1. Legal Basis"

(a) The Policy is conditional upon full and true disclosure having been made in the proposal and medical statement, if any, of all material facts of which the Company ought to have been informed for the purposes of the contract of assurance.

(b) The allocation of Units to the Policy shall not constitute the Company or any other person a trustee of such units on behalf of the owner of the...