Kirby v Friends First Life Assurance Company Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní |
| Judgment Date | 10 December 2018 |
| Neutral Citation | [2018] IEHC 796 |
| Docket Number | Record No. 2014 2632 P |
| Court | High Court |
| Date | 10 December 2018 |
[2018] IEHC 796
THE HIGH COURT
Ní Raifeartaigh J.
Record No. 2014 2632 P
Liability – Disclosure – Income protection scheme – Plaintiff seeking an order directing the defendant to indemnify him according to an income protection scheme – Whether there was material non-disclosure
Facts: The defendant, Friends First Life Assurance Company Ltd, repudiated a contract for income protection entered into with the plaintiff, Mr Kirby, on the basis of the failure of the plaintiff to furnish certain information concerning his medical history. The defendant refused the plaintiff’s claim under the income protection scheme by letter dated the 17th February, 2012. In his statement of claim, the plaintiff sought the following reliefs; an order directing the defendant to indemnify him according to the income protection scheme, a declaration that the plaintiff had discharged his duty of utmost good faith to the defendant when applying for the insurance scheme, a declaration that the defendant was not entitled to avoid the insurance contract, damages for breach of contract, negligence and/or breach of duty (including statutory duty), interest, and certain related orders. In its defence, the defendant pleaded that the plaintiff had not acted according to the required standard of utmost good faith, was in breach of the express or implied conditions of the insurance policy, was in breach of warranty, and had acted contrary to his express declaration by failing to disclose material facts in relation to the insurance policy and by misrepresenting that he had in fact done so.
Held by the High Court (Ní Raifeartaigh J) that there was a material non-disclosure within the meaning of the Chariot Inns v Assicurazioni Generali S.P.A [1981] IR 199 principles, and one which did not fall within any of the exceptional situations referred to in the other authorities referred to.
Ní Raifeartaigh J held that she found in favour of the defendant on the issue of liability.
Relief refused.
The essential question is whether the defendant insurance company was entitled to repudiate a contract for income protection entered into with the plaintiff on the basis of the failure of the plaintiff to furnish certain information concerning his medical history.
The defendant refused the plaintiff's claim under the income protection scheme by letter dated the 17th February, 2012. In his statement of claim, the plaintiff sought the following reliefs; an order directing the defendant to indemnify him according to the income protection scheme, a declaration that the plaintiff had discharged his duty of utmost good faith to the defendant when applying for the insurance scheme, a declaration that the defendant was not entitled to avoid the insurance contract, damages for breach of contract, negligence and/or breach of duty (including statutory duty), interest, and certain related orders.
In its defence, the defendant pleaded that the plaintiff had not acted according to the required standard of utmost good faith, was in breach of the express or implied conditions of the insurance policy, was in breach of warranty, and had acted contrary to his express declaration by failing to disclose material facts in relation to the insurance policy and by misrepresenting that he had in fact done so.
On the second day of the hearing, I decided that the issue of liability should be dealt with in the first instance and that the quantum part of the trial should be postponed. This arose in circumstances where the plaintiff had furnished the defendant with two expert reports for the first time on the first day of the hearing, one from an actuary and the other a taxation consultant. Counsel for the defendant said that he was not in a position to agree to admit these reports without first consulting his own experts, which would take some time, and also pointed out that the quantum issue would fall away in any event if the Court were to find against the plaintiff on the issue of liability. Although there had been some limited cross-examination of the plaintiff on the first day relating to matters touching upon quantum rather than liability, I decided that the best course of action would be to proceed with a liability-only phase, postponing the issue of quantum. Accordingly, this judgment deals with liability issues only.
The Plaintiff started working as bus driver with Bus Eireann in 2003. There was a group scheme available in respect of income protection, but the plaintiff did not apply to join the scheme at that time.
The group scheme's title was ‘Group Insurance Protection Policy No. G19116’ and its owners were SIPTU and NBRU. The policy was open to all bus drivers under the age of 65 who worked for Bus Eireann or Dublin Bus and who were members of NBRU/SIPTU. The policy operated such that if an employee fell ill and made a claim, the policy would, after 26 weeks, of illness begin to provide 75% of an employee's annual earned income (less any social welfare payment for any dependents, early retirement pensions or any award from a tribunal or court). The payments would rise at a rate of 2.5% per annum and would cease on the date of an employee's 65th birthday or their return to work.
The premium for the policy varied depending on which bus company an employee worked for and was payable weekly. It was administered on behalf of the two unions by the brokers Jardine Lloyd Thompson Financial Services (hereinafter ‘JLT’). If any members of the policy had queries or complaints in relation to the scheme they were directed to an individual working at JLT. Similarly, if members were to obtain a second job they were directed to inform JLT of this as it would have implications for how much of the benefit they would receive should they fall ill. JLT were also the first point of contact when an employee sought to make a claim under the scheme, although of course the decision as to whether to pay out under the claim or not lay with the insurer, Friends First.
On the 22nd August, 2008, at a time when he had not yet applied to join the scheme, the plaintiff began complaining to his GP, Dr. Patrick Lynch, of a feeling akin to that of being stung by nettles on his hands, feet and legs, and of severe stomach pain. Dr. Lynch certified that the plaintiff was unfit for work and referred him to a consultant physician, Dr. Paud O'Regan at South Tipperary General Hospital. This signalled the beginning of both an absence from work for the plaintiff during October and November and a number of medical investigations. A key question in the case relates to how the plaintiff dealt with these events when he later came to fill out the application form to join the scheme.
On the 25th August, 2008, the plaintiff then began to complain of persistent itching all over his body, a rash and of not feeling very well generally. He was prescribed a number of medications by Dr. Lynch for his itch on that date, and subsequently on the 1st September in the same year.
On the 8th September, 2008, the plaintiff complained to Dr. Lynch of memory loss, reduced concentration, and a ‘lightheaded, merry feeling’. He described an incident a few weeks before where he had inexplicably been €490 short on the weekend takings of passenger fares and had to make up the missing sum from his own money.
On the 11th September, 2008 the plaintiff was admitted to South Tipperary General Hospital complaining of generalised weakness, dizziness, lack of concentration and fatigue. It appears that at some stage he also began to complain of facial pain and numbness. Dr. O'Regan ran a full medical investigation over the course of the month which included a CT scan of the plaintiff's brain. He came to the conclusion that the plaintiff was suffering from a polyp in one of his sinuses and that his symptoms were consistent with severe sinusitis. The plaintiff was discharged from hospital on the 13th September, 2008.
The plaintiff was then referred to a Mr. Ali Khan, a consultant othorhinolaryngologist (a sub-speciality of medicine dealing with the ear, nose and throat) at Aut Even Hospital in Kilkenny. On the 18th September, 2008, the plaintiff underwent an MRI scan at Aut Even, and on the 25th September, Mr. Khan examined the plaintiff himself. The results of the scan confirmed an infected nasal polyp in one of his sinuses, for which Mr. Khan prescribed a nasal spray.
On the 29th September, 2008, the plaintiff underwent further examination in the form of a full colonoscopy. Dr. O'Regan stated that the examination found nothing out of the ordinary beyond a patulous lower oesophageal sphincter, which, as I understand it, was not considered indicative of a serious ailment.
On the 16th October, 2008, the plaintiff underwent an echocardiogram at South Tipperary General Hospital's cardiac department, the results of which were normal.
On a number of dates, (the 15th September, the 7th October, the 9th October, the 10th October, and the 13th October, 2008) the plaintiff was also seen by a Dr. Bernadette McCarthy, a medical eye specialist, for nausea, headaches and complaints relating to his vision, the plaintiff having stated that his vision was ‘wavy and distorted’. He tested negatively for an eye disorder known as Adie syndrome and was prescribed eye drops. Dr. McCarthy noted that the plaintiff's pupils were of an unequal size (aniscoria) but that this appeared to improve as time went on.
On the 30th October, 2008 Dr. O'Regan wrote to the plaintiff's general practitioner, Dr. Lynch, to inform him that overall the plaintiff was doing well but that there had recently been a recurrence of mouth ulcers, for which he was...
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Kirby v Friends First Life Assurance Company Ltd
...directly to this Court is from the decision of the High Court finding in favour of the defendants on the question of liability (see [2018] IEHC 796). The Application for Leave 6 The trial judge reached her conclusions by reference to the principles laid down by this Court in Chariot Inns v......