1987 No. 8054P
Judgment of Mr. Justice Egan delivered the 15th day of March 1989.
The Plaintiff is the widow of James Joseph Keating who died on the 14th December 1985. Exactly six months prior to his death he and the Plaintiff had entered into a Life Insurance Policy with the Defendant dated the 14th June 1985 under the terms of which upon the death of the Plaintiff or the said James Joseph Keating the survivor would be entitled to receive from the Defendant the sum of £35,000 on the encashment value of the policy whichever would be the greater.
Following on the death of the said James Joseph Keating the Plaintiff demanded payment of the said sum of £35,000 but the Defendant has repudiated liability to pay the same.
The Policy provided under the heading "Legal Basis" that "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 purpose of the contract of assurance".
It was also provided that "The Contract of Assurance expressed in this Policy is based on the proposal made in that regard to the above-named Company by the assured and on the medical statements, if any, made to the Company's medical examiner in connection with the proposal".
The proposal was signed by the parties on the 16th May 1985 and the replies to questions on the form were written in by Mr. J. Smyth on foot of information given to him by the Plaintiff and her deceased husband. In reply to "Names and addresses of doctors attended" the answer was "None". I am not too clear as to what information was required in reply to this query as to "Names and addresses of doctors attended". Does it mean "ever attended" or "recently attended"? It is not clear but it does not matter in this case as a medical examination of the parties was carried out on the 28th May 1985 (a couple of weeks before-the Policy was executed) and in reply -to the question "What is the name and address of your present Attendant" James Keating replied "Dr. G. Kidney, Harbour Street, Tullamore". At this examination he also disclosed a complaint of "Epigastric discomfort" and that he had spent two days in Baggot Street Hospital, Dublin, under the care of Dr. Gearty, a well known Cardiologist and known to be such by Dr. Duffy who carried out the examination on behalf of the Defendant. Dr. Duffy knew that tests had been done in Baggot Street from his discussion with James Keating and, having questioned James Keating, he wrote "Nil abnormal discovered" in relation to the stay in Baggot Street. Furthermore,, in reply to a question as to whether he had "now or ever had any affection of the Heart" James Keating replied in the negative. replies were not accurate and, if they were known James Keating they would quite clearly have non-disclosure, even misrepresentation. The Baggot Street tests had, in fact, revealed a condition of "Angina" and this on an objective test within the meaning of the Judgment of the Supreme Court as delivered by Kenny, J. in:
Chariot Inns v. Assicurazioni Generali 1981 I.R.P. 199 would have been a "material" matter entitling the Company to repudiate. It would not have mattered, in my opinion, that the Company could have ascertained the true position if they had sought informaton (with James Keating's consent) from either Dr. Kidney or Dr. Gearty as is often done in such cases.
Dr. Kidney had seen James Keating on the 23rd March 1985 when he was complaining of pain in the upper part of the abdomen which was worse after meals or on exertion. He was concerned that the condition might be angina but he did not mention his suspicion to Mr. Keating but referred him to Dr. Taaffe who in turn referred him to Dr. Gearty. Dr. Gearty saw Mr. Keating on the 11th April 1985 and arranged for him to come into Baggot Street for tests. He was admitted on the 25th April 1985 and his consent was obtained to undergo an Angiogram. This revealed considerable narrowing in some of the coronary arteries and the condition was moderately severe.
Dr. Gearty stated that cardiac conferences in the hospital were common and that a patient should get the gist of his condition from one of the team before his discharge and be given suitable advice, e.g., reducing his work-load. Dr. Gearty stated that this would be the proper routine but that there could possibly be a weakness in the extent to which the routine might be adhered to. In actual fact the deceased's discharge note (undated but written on the 26th or 27th April) contained under the heading "Diagnosis" the words following:- "Initial report good. Full report to follow". I am not prepared to hold, therefore, that the deceased knew at the time of his discharge from Baggot Street that he was suffering from Angina.
I also hold as a matter of fact that he did not know of this condition at the time of the execution of the Policy on the 14th June 1985 even though a report dated 7th May 1985 had been sent to Dr. Kidney by Dr. Gearty disclosing moderately severe angina. I make this finding in the light of the fact that Dr. Kidney did not see the deceased until the month of July i.e. after the Policy had been executed. Dr. Kidney had assumed that Dr. Gearty would have told the deceased of his condition but this assumption as already stated was not, in my view factual. Neither was it suggested during the course of the case that the Plaintiff, who was the beneficiary under the Policy, was informed at any time prior to the execution of the Policy of her husband's condition.
Non-disclosure can only be relevant to some fact of which the person has knowledge at the relevant time. It was also contended that, as a matter of contract, once the answers were actually untrue, the Policy was void. I cannot accept this argument. The "legal basis" of the Policy required disclosure of all material facts of which the Company "ought to have been informed". How can it be said that a person "ought" to disclose some fact which he does not know about? How could he do so?
There must accordingly be Judgment for the Plaintiff.