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Cite as: [2005] IEHC 449

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Neutral Citation No: [2005] IEHC 449

THE HIGH COURT

[2001 No. 17745 P]

BETWEEN

EDMOND O'REILLY

PLAINTIFF

AND

IRISH LIFE ASSURANCE PLC

DEFENDANT

JUDGMENT of Mr. Justice John MacMenamin delivered on the 1^st day of November, 2005

In 1988 the Irish Agricultural Advisors Organisation as grantees effected a policy whereby in consideration of the payment of certain premia, the defendant would provide insurance in respect of accidents or sickness occurring to the members of the Irish Agricultural Advisors Organisation employed by Teagasc. The commencement date of the policy was 1^st July, 1988, and the policy was renewed thereafter at all times insofar as is material to these proceedings.

The matter in issue is as to whether the plaintiff is eligible to avail of this policy.

The Plaintiff

The plaintiff was born on 9^th September, 1941. He is a married man with five children. He resides at Graigue, Ballypatrick, Clonmel, Co. Tipperary. His wife is a teacher, having resumed work after rearing the children of the marriage. During the time material to these proceedings the plaintiff as employee of Teagasc was Chief Agricultural Development Officer of the South Riding of Tipperary.
The Plaintiff's Employment

It is accepted that the plaintiff's was in a responsible employment position. His function was to manage and lead agricultural advisory and training services in the county, to ensure the implementation of schemes approved, to function as supervisor of a group of approximately 20 district managers in the development, operation and review of programmes devised by Teagasc. His tasks included the evaluation of district teams employed by Teagasc against targets, the coordination of the activities of such teams and the utilisation of his employers' resources. The position entailed a significant degree of travel and attendance at meetings with members of the farming and agri-business community within the county. The employment involved a significant educational and public relations function.

The plaintiff retired on 18^th July, 1998. This was two months prior to his 57^th birthday. At the date of retirement he had been six and a half years in his post. The plaintiff's contention in these proceedings is that it was necessary for him to retire on health grounds, and that he was unable to continue his employment by reason of sickness and disability.

At the time there was in place with the defendants an income protection policy. This was a group policy intended to provide persons in the plaintiff's category with accident and sickness benefit by way of salary protection insurance.

The plaintiff contends that as his retirement was due to ill health, he is entitled to avail of the policy and benefit thereby. On the date of retirement, he retired on 50% of his salary, such payments being made by his former employers. The claim in issue therefore relates to such additional sum as to which he may be entitled on foot of the policy to date and into the future.

In 1993 the plaintiff attended his General Practitioner, Dr. Colman Walsh. He complained of pains in his joints. He told Dr. Walsh that this pain impinged on his ability to carry out work. Over the following years the plaintiff carried on work but continued to complain to Dr. Walsh that the pain was increasingly affecting him such that he was periodically compelled, almost on a daily basis, to cease work and rest at home for periods of up to approximately two hours.

This conduct appears, from all the evidence to have been at variance from his previous employment history. Mr. Michael Galvin, the former Director of Operations at Teagasc, testified that the plaintiff enjoyed an excellent reputation and was highly conscientious in the performance of his employment tasks. He testified that there was a significant deterioration in the plaintiff's performance in the last two or three years in which he held employment.

The nature of the plaintiff's medical complaints in November 1993 and the diagnoses made thereafter should now be more fully described. He complained to Dr. Walsh of pain and fatigue in his shoulders and arms. He was advised that he would have to cut back on physical activity. Dr. Walsh concluded on 23^rd November, 1993, that the plaintiff's condition could be described as arthralgia. He testified that his understanding of the condition of arthralgia was effectively joint pain. Tests carried out on the plaintiff for rheumatoid arthritis were at that stage negative. Dr. Walsh prescribed anti-inflammatories. In December of 1993 the plaintiff was prescribed further medication which was more disease-modifying than anti-inflammatory in nature. Dr. Walsh indicated that he was not entirely certain as to his diagnosis. He was concerned that the plaintiff might have the condition known as Lupus. On 6^th January, 1994, Dr. Walsh referred the plaintiff to Dr. Pat Kinsella, a consultant rheumatologist in Cork. He was admitted to the Bon Secours hospital under that consultant from 2^nd February until 11^th February, 1994.

Dr. Kinsella reported to Dr. Walsh that the plaintiff's symptoms suggested a mild sero-negative rheumatoid arthritis. He was continued on anti-inflammatories.

By 30^th May, 1994, Dr. Walsh's views had begun to alter somewhat. In the light of the information which he had subsequently received from the consultant Dr. Kinsella, the plaintiff's General Practitioner formed the tentative diagnosis that the plaintiff was suffering from a condition known as fibromyalgia. This is a condition defined by Dr. Walsh as being one involving musculo-skeletal pain. Throughout 1995 the plaintiff continued to suffer from general pain including backache and aching of his joints.

By 25^th March, 1996, Dr. Walsh, the plaintiff's general practitioner, had reverted to the view that his patient was suffering from arthralgia. He again referred him to Dr. Patrick Kinsella for follow-up and diagnosis. The plaintiff's joint symptoms had increased. From 1995 onwards the plaintiff had been prescribed quite powerful painkillers including Voltarol Retard 100mg daily and Ponstan. He continued on this medication.

By 5^th October, 1996, Dr. Kinsella, the plaintiff's consultant rheumatologist, had arrived at the view that it was likely that the plaintiff was suffering from sero-negative non-erosive rheumatoid arthritis. This is a condition of rheumatoid arthritis which is non-manifest in blood analysis. Dr. Walsh described the plaintiff at this stage as suffering from generalised pains and aches.

A further examination in November, 1996 led Dr. Kinsella to conclude that the plaintiff was still suffering from this condition which remained active. He commenced more aggressive therapy. The medication prescribed for the plaintiff involved significant amounts of steroid drugs. White and red blood cell tests were carried out. The plaintiff was prescribed 7.5 mgs of Deltacortril per day and 10 mgs of Methotrexate weekly. In evidence the plaintiff described his symptoms as worsening through the years 1997 and 1998 causing him to find his job increasingly difficult.

Because of its particular relevance to the question of retirement it will be helpful to examine carefully the medical findings from August, 1997 up to the date of the plaintiff's cessation of work in January, the following year; and his ultimate decision to retire made in June, which took effect on 18^th July, 1998.

In August, 1997 the plaintiff was commenced on a drug known as Salazopyrin 2g daily. He was also prescribed Deltacortril in a reduced dose of 7 mgs a day with Arthrotec and Ponstan. On 19^th October, 1997, Dr. Kinsella reported finding widespread articular symptoms since starting this regime seven weeks previously. It was hoped that within a month the Salazopyrin would become effective. The dosage of Deltacortril was also increased to 10 mgs and 7 mgs on alternate days. The plaintiff was to report back to Dr. Walsh his general practitioner.

The medical regime under which the plaintiff was then placed was described in evidence as rigorous. Each of the drugs apparently had significant side effects. Dr. Walsh described this regime as "not for the faint hearted".

In October, 1997 the plaintiff described symptoms of pains and aches. He found that the regime prescribed was not functioning. He described himself as being very frustrated. It was decided that he be continued on Ponstan, Arthrotec and Deltacortril.

This regime of medication was altered somewhat on 19^th November, 1997. It was replaced by a "cocktail" of Ponstan and Salazopyrin. Unfortunately the plaintiff stated that he did not encounter any significant relief from the change.

By late 1997 the plaintiff testified that he had constant pain in his limbs. These symptoms appeared to operate in a continuous cycle of pain and tiredness occurring both in the morning and afternoon. In the last six months of his active employment he said that he struggled desperately to do his work. He avoided practically all night work. Because it was necessary for him to rest in the afternoon he tried to fit as much work into the morning as he could. He said that he was under "severe pressure" at the time.

One turns then to the plaintiff's family circumstances. In late 1997, he and his wife had two children in second level education and one at third level. This was a very big financial issue for the family. He was concerned that retirement would have the effect of halving his income. Consequently he endeavoured to postpone such a decision as long as possible. While their financial situation had improved somewhat by virtue of his wife re-entering the work force as a teacher in 1985, she was on relief work only until the time of his retirement.

By early January, 1998 the plaintiff's general practitioner concluded that he was suffering from rheumatoid arthritis. He was prescribed a scheme of medication which in Dr. Walsh's view was suitable for this condition to a moderate to severe degree. On his General Practitioner's recommendation he was placed on sick leave on 12^th January, 1998. He was provided with a medical certificate. It stated that he was suffering from rheumatoid arthritis. The first of these medical certificates was for a period of four weeks. They continued thereafter up to the date of the plaintiff's retirement in July of the same year.

In February, 1998 the plaintiff again visited his consultant. Dr. Kinsella placed him on higher dosages of painkillers including an extremely strong anti-inflammatory, known as Indocid.

Throughout the spring of the year 1998, Dr. Walsh continued to review the plaintiff. He considered his medical condition was arthralgia. As of April that year the consultant, Dr. Kinsella, was inclined to try a yet higher dosage of Methotrexate in substitution for Salazopyrin together with Deltacortril, Arthrotec and Indocid suppositories at night. However, the plaintiff continued to be unfit for work.

By June, it was decided that the plaintiff should be discontinued on Methotrexate. There was discussion between Dr. Walsh and Dr. Kinsella as to whether the plaintiff should be admitted to hospital. Dr. Kinsella advised that it might be advisable to obtain a second opinion in view of the unusual aspects of the presentation of the plaintiff's condition.

The Retirement Negotiations

It is now necessary to consider the manner in which the plaintiff entered into negotiations with his employer, regarding retirement and also as to how his claim to avail of the policy in issue was processed.

The evidence from the Teagasc witness Mr. Michael Galvin as to the plaintiff's excellent reputation, his conscientious conduct and the diminution in performance in employment has been outlined.

Ms. Mary Wall, a personnel administrator in Teagasc at the time, testified that the plaintiff was in a very senior position at the time of his retirement. She was of the view that he would not have been considered for alternative employment as he was never well enough. Teagasc would not have had available alternative employment at the plaintiff's former level. She referred to regulations made under the staff superannuation scheme which allowed for retirement on medical grounds due wholly to infirmity. If the plaintiff had been capable of returning to work it would have been possible for him to do this on a phased basis starting by working part-time and thereafter resuming full time employment. Such an opportunity never arose.

Teagasc were satisfied that the plaintiff was unable to continue employment by reason of what was considered to be his condition of rheumatoid arthritis which had not responded to medication. Dr. Alan O'Grady, medical advisor to Teagasc, advised that the plaintiff would not be fit to return to work and that consideration should be given to his retirement on the grounds of ill health.

In early June, 1998 the plaintiff determined that he would retire from his employment. He had been absent from work since 12^th January, 1998. In compliance with the claims procedure laid out under the policy as stipulated he submitted a claim form and medical report in connection with his claim on 10^th June, 1998, and sought to avail of the income continuance plan. This claim as submitted was passed on by Teagasc, in the first instance to their insurance brokers, Messrs Cregan McGuinness, who acknowledged receipt thereof on 22^nd June, 1998. They in turn passed on this documentation to the defendants. In order to process the claim the plaintiff's General Practitioner Dr. Walsh, furnished a medical certificate to the defendant. It stated that the plaintiff was suffering from pain and poor mobility and that tests carried out had demonstrated that at that point the plaintiff was suffering sero-negative arthritis. Dr. Walsh stated that the plaintiff was unfit to follow his normal occupation. His view was that the plaintiff would be unable to resume work in the foreseeable future. His conclusion was that the plaintiff was unable to perform all of his employment.

In response to this the defendant took a number of steps. On 1^st July, Mr. Nick O'Brien, an official of the defendant company visited the plaintiff in order to obtain background information regarding his personal circumstances. By letter of 3^rd July, 1998, the defendant informed the plaintiff that he would be required to attend an independent medical examination by Dr. Mark Phelan, a consultant rheumatologist in Cork. Because the plaintiff had been absent from work since 12^th January and his retirement took effect from 18^th July, 1998, a period slightly in excess of 24 consecutive weeks expired since the plaintiff's absence from work had commenced on foot of his General Practitioner's advice. This elapse of time is of some significance in that under the policy what is defined as the "deferred period" of 26 consecutive weeks had by then almost expired. The definition of this period is dealt with below.

The examination arranged with Dr. Mark Phelan, Consultant Rheumatologist, took place in the South Infirmary in Cork. This was carried out on 6^th August, 1998. Dr. Phelan reported that there were no extra articular manifestations of arthritis. The plaintiff did not complain to him of any swelling in his joints. A health assessment score test is designed to measure the disability in the activities of the subjects daily living in the week prior to assessment. Dr. Phelan considered that this test administered to the plaintiff indicated very minimal disability, as the plaintiff achieved a score of 0.125 out of a possible 3, the latter number being the maximum for disability.

Dr. Phelan considered that the plaintiff was suffering from a mild inflammatory arthritis which was well controlled. He reported that the diagnosis of sero-negative rheumatoid arthritis seemed reasonable. He added that the plaintiff's disease was well controlled and not clinically active. There was no clinical joint deformity over the last five years. This indicated that the disease was relatively mild. He wrote in his report:-

"…Mr. O'Reilly's disease is well controlled, I do not see any reason for a change in his current treatment. Should his disease flare again there are a number of other treatment options such as Intra-muscular Gold RD Penicillamine…"

His view was that the plaintiff had no current disability regarding his occupation.

In view of the fact that the plaintiff was to be admitted under Dr. Kinsella for assessment that doctor withheld reporting until after 4^th September, 1998. Ms. Joan Bray, Administration Manager of Cregan McGuinness, sent a reminder to the plaintiff on 8^th September, indicating that the defendants would not make any decision as to eligibility under the policy until a report was received from that consultant. In his report of 4^th September, 1998, Dr. Kinsella, having set out the plaintiff's history, stated that the plaintiff continued to have arthomyalgia making it difficult for him to work even if that work was clerical. He considered the plaintiff should be able to do some work, albeit not of a heavy physical nature. He concluded:-

"…In summary, I feel this patient's symptoms are genuine and have discussed his case in detail with his family physician who has known him for many years. He has ongoing poly-arthralgia the likely explanation is a somewhat atypical presentation of sero-negative non-erosive RA (rheumatoid arthritis) and he will clearly have a degree of permanent partial disability in my view."

Having received these reports, Ms. Susan Doherty, Senior PHI Claims Assessor of Irish Life, wrote to Ms. Joan Bray of Cregan McGuinness (L & P) Limited, the insurance brokers, to Teagasc on 18^th September, 1998. Although there is a typographical omission in this letter, there is no dispute as to its meaning. The opinion of the defendant was that the plaintiff was not currently totally disabled from following his normal occupation. Therefore the defendant considered that it was not in a position to pay a claim. It will be noted that the date of this letter was significantly outside the deferred payment period of 26 continuous weeks stipulated by the policy.

Ms. Doherty indicated that the defendants were disposed to arrange for the plaintiff to attend for a further medical examination. He was therefore assessed by Dr. Michael Kelly, Consultant Rheumatologist in the Blackrock Clinic on 29^th November, 1998.

Having carried out an examination and obtained a history Dr. Kelly concluded that there were no traces of Synovitis. Neither did he find evidence of any degenerative joint condition. The plaintiff indicated that he was suffering pain along the line of his ankle joint radiating into the dorsum of the foot. He was suffering pain under the left heel. Dr. Kelly was unable to find any degenerative disorder in the metatarsal phalangeal joints. He concluded that the plaintiff had arthralgia which he described as subjective joint pains. He reviewed a number of reports and concluded that there was not any objective evidence that Synovitis was clearly demonstrated. He accepted that the plaintiff continued to have pain and disabilities. However he felt unable to find any evidence of disease process in a joint such as to substantiate an assertion that he was unfit for work.

Dr. Kelly was unable to give a diagnosis. Conceivably, he considered, the plaintiff might have a very mild arthritis. However he could not make a diagnosis on the basis of one visit. He did not consider there was any evidence of active arthritis. Thus he concluded that if the condition was present it was either in remission or fully controlled by medication. He reported:-

"…He is on anti-inflammatories. There are no further treatment options. I do not consider him unfit for work…"

It was only on 16^th December, 1998, that the plaintiff himself actually received notification from his employer's insurance brokers that the defendants considered they were not in a position to pay a claim in the matter. He ultimately received this notification, he testified, on Sunday 20^th December, 1998. This elapse of time has not been explained.

On 14^th January, 1999, the plaintiff wrote to Ms. Doherty of Irish Life. In the course of this letter he wrote:-

"…Your decision regarding my fitness to work is totally incorrect.
It has left me shattered and disbelieving. To retire from a satisfying and rewarding job which I enjoyed was the most difficult decision I have ever had to make.

Your decision completely contradicts the pain and discomfort which I have consistently reported to my doctor and specialist since 1993 and the specialist appointed by you in August and October, 1998. I cannot understand how you could reach your decision on medical grounds and I'd ask you to review my case with the specialist and doctors involved…"

On the same date the plaintiff wrote to Ms. Bray of Cregan McGuinness:-

"…The decision of Irish Life regarding my claim is terrible for me. I have written to Irish Life asking them to review my case – copy of letter attached and I hope that for my own sanity this serious error will be reversed…"

No positive response emanated from the defendant.

Matters did not rest there. In the year 1999 the plaintiff was referred by his General Practitioner to Dr. Maurice Barry, Consultant Rheumatologist in the Bon Secours Hospital, Dublin.

In a report to Dr. Walsh dated 9^th November, 1999, Dr. Barry stated:-

"…This man has chronic widespread pain and evidence clinically of Fibromyalgia. His symptoms are quite severe and interfere with day to day functions. He has had symptoms for some years but now, that a diagnosis has been made in recent times, I would hope that he would improve significantly in the future.

I don't feel at present that he is fit to make a return to his former or similar occupation but this could theoretically change over the next year."

It will be seen therefore that there was a stark conflict between the views of Dr. Barry and consultants retained by the defendant.

On 18^th January, 2000, the plaintiff wrote to Ms. Susan Doherty, the Senior PHI Claims Assessor of Irish Life. He indicated that he had consulted Dr. Barry and enclosed the medical report. He pointed out that Dr. Barry's diagnosis was Fibromyalgia. He wrote that he was relieved that at last a diagnosis had been made which explained the reasons for his pain. The plaintiff said that he had been previously incorrectly diagnosed. He also enclosed a report from his General Practitioner which outlined the consultations and referrals undertaken. He indicated that he had no option but to retire on ill health grounds.

On 7^th February, 2000, Ms. Doherty of the defendant responded to the plaintiff's letter. She stated that "in view of the conflicting medical evidence on file" and in an effort to resolve the matter, the defendants were prepared to arrange for the plaintiff to attend a further medical examination this time with Dr. Frances Stafford a Consultant Rheumatologist in the Blackrock Clinic in Dublin. In her report dated 19^th March, 2000, borne out in oral evidence, Dr. Stafford opined that while the plaintiff described widespread arthralgia it was difficult to put a medical label on these symptoms. She noted the complaints of widespread joint stiffness and fatigue but was of the view that it was difficult to quantify the plaintiff's disabilities. She found no limitation of movement in any joint. She commented that the plaintiff did not appear motivated to return to work as he seemed to believe that he was not physically able to do so. From the musculo-skeletal perspective she could find no good reason why the plaintiff was not able to carry out the duties of his normal occupation as an agricultural advisor. She believed the plaintiff was fit for full time work. She concluded:-

"…Even if one were to accept that Mr. O'Reilly had fibromyalgia, which is somewhat debatable, rule of thumb in this condition is that patients symptoms may vary but tend not to get worse than those present at the time of diagnosis. This condition does not lead to any deformity of joints or reduce mobility…"

On 19^th April, 2000, Ms. Doherty of Irish Life plc wrote to the plaintiff indicating that as a result of Dr. Stafford's report the defendant considered that he did not meet the definition of disability as required by the policy and as a consequence they were declining to pay the claim.

Undeterred, on 26^th June, 2000, Dr. Walsh referred the plaintiff to Dr. Brian Mulcahy, Consultant Rheumatologist in Shanakiel Hospital, Cork.

The plaintiff described to Dr. Mulcahy his long standing widespread pain and his symptoms in his lower limbs which came on in the morning and lasted for many hours. He said he had a window of relief for a few hours thereafter but his symptoms reappeared later in the evening. These symptoms were associated with the feeling of intense fatigue. The plaintiff took to bed on two or three occasions every day.

Dr. Mulcahy found only mild symptoms of bilateral patello-femoral crepitus. He did not find any myofascial tender trigger points in a distribution characteristic of fibromyalgia. However the plaintiff had informed him that he was "going through a good period".

Dr. Mulcahy concluded that the plaintiff had "Chronic Pain Syndrome of Unknown Aetiology". Even though the diagnosis of fibromyalgia had been mooted, he could not clinically make this diagnosis on a definite basis as the plaintiff did not have sufficient distribution of symptoms to satisfy the diagnosis based on the American College of Rheumatology criteria. Dr. Mulcahy's view was:-

"…He has significant symptoms on a daily basis, particularly arthralgia in his lower limbs, with associated profound fatigue. On account of the continuing nature of his symptoms, I cannot see him at present returning to full time employment".

This report was furnished to Irish Life. In response, on 27^th February, 2001, Ms. Rachel Moffatt, PHI Claims Inspector in the defendant, wrote to Dr. Susan Sant, Consultant Rheumatologist in the Charlemont Clinic in Dublin. The tone and terms of the letter were unusual. In the course of her referral letter she wrote:-

"Please note that the claim is payable as long as the definition of disability as required under the policy is satisfied. Disablement is deemed to exist where the insured person is unable by reason of illness or injury to carry out any of the duties of a normal occupation and is not following any other occupation."

On 24^th April, 2001, Dr. Sant reported back to the defendant in guarded terms. She wrote that, one would not think that the findings were severe enough to warrant disability. She concluded in response to specific questions:-

"1. This gentleman presents with chronic polyarthralgia. He does NOT satisfy the defined criteria for a diagnosis of fibromyalgia. He does not have an inflammatory arthritis.

2. He complains of chronic widespread joint pain and fatigue.

3. He is unable to perform simple activities of daily living such as preparing a meal or gardening.

4. It is impossible to quantify his disabilities at this time, he does not have any limitation of movement in any joint.

5. A clinical diagnosis of fibromyalgia is made of the report of chronic widespread pain and the finding of multiple tender points. This patient presents with a history of chronic widespread pain but does not satisfy entirely (emphasis added) the tender point count necessary for a diagnosis of fibromyalgia.

6. He is currently on Celebrex 200 mgs b.d., Vascase, 1 tablet daily and Effexor, 37.5 mgs b.d.

7. Further treatment options that have found to be successful in patients with a possible diagnosis of fibromyalgia have included an increase in aerobic exercise to lead to improved physical conditioning, reduction of stress and the ensuring of a normal sleep pattern.

8. Further rehabilitation options are listed in response to question seven.

9. I believe Mr. O'Reilly is currently fit for full time work based on my assessment as carried today.

10. Mr. O'Reilly does not at this time appear motivated on returning to work as he genuinely believes that he physically is unable to do so.

11. In general patients with chronic Polyathralgia in the absence of any defined inflammatory process usually have an entirely benign outcome, they lead full lives, remain fully mobile and have no joint deformity or long term disability."

In evidence in the course of this hearing the plaintiff's General Practitioner, Dr. Walsh, reiterated his views on the plaintiff. He summarised his view of the plaintiff in a report dated 12^th December, 2003, as follows:-

"In summary I attended Mr. O'Reilly for the last 18 years. During that time I feel that I have got to know Mr. O'Reilly extremely well. I consider him to be an extremely honest and genuine man. Prior to his present illness I had no evidence to suggest that he was not well motivated regarding his work. I am of the opinion that this man is suffering from Chronic Pain Syndrome of Unknown Aetiology and is unable to continue working. I am of the opinion that since 1998 his symptoms were sufficiently disabling to make it necessary for him to retire from work as the Chief Agricultural Officer on health grounds."

In summary therefore, a number of different diagnoses have been made by report and tendered in evidence as to the plaintiff's condition. These include arthralgia, chronic pain syndrome, rheumatoid arthritis, and fibromyalgia. Moreover during the course of consultation with Dr. Barry in 1999 it was suggested that the plaintiff might benefit from carrying out some research on his own behalf on the internet. On foot of this the plaintiff in November, 1999 stated that he identified strongly with having the condition known as fibromyalgia, that is a condition involving pain and tenderness in the upper and lower limbs.

In the course of evidence it is been suggested that there are 18 different "trigger points" which may be used as a guide to identify whether or not a patient is suffering from fibromyalgia. If these trigger points can be identified in 11 or more positions then such a diagnosis may come according to many medical authorities. Some of those trigger points have been identified in the plaintiff but not in a sufficient number to justify a diagnosis of fibromyalgia.

The defendants doctor views have been set out in some detail and will again be considered later. However the plaintiff was diagnosed as follows by his own doctors:

November 1993 – Arthralgia – Dr. Walsh, General Practitioner; Lupus rejected,
1994 – Sero-negative Rheumatoid Arthritis together with some arthritic changes – Dr. Kinsella, Consultant Rheumatologist,
May 1994 – Fibromyalgia – Dr. Walsh,
March 1996 – Arthralgia – Dr. Walsh,
October 1996 – Sero-negative Rheumatoid Arthritis, Dr. Kinsella,

November 1996 – Further diagnosis of Sero-negative Rheumatoid Arthritis,
January 1998 – Rheumatoid Arthritis – General Practitioner, Dr. Walsh.
1999 – Inconclusive – but unable to work – Dr. Barry.

Later 1999 – Query Fibromyalgia on the basis of plaintiff's own identification,
2000 – Chronic Pain Syndrome of Unknown Aetiology with features of Fibromyalgia – Dr. Brian Mulcahy. This summary is made, in brief form, as the information made available to the plaintiff and upon which he acted over the period in question.

The Plaintiff at Present

In evidence the plaintiff described his present position. He maintains 35 dry stock cattle on his 50 acre small holding. He described his day to day life as carrying out short periods of work in the garden, walking his dog, engaging in gentle exercise, resting in the afternoon and relating with his family. He is assisted in the maintenance of his herd.

A summary of the positions adopted

The plaintiff's case is that his decision made in consultation with his employer. It took effect on 18^th July, 1998. By then he had been on sick leave since 12^th January of that year. The decision was supported by and on the advice of his own General Practitioner, Dr. Walsh and Dr. Alan O'Grady, Medical Advisor to Teagasc. As and from the date of retirement the plaintiff ceased to be an employee of Teagasc.

The retirement date in question took effect just inside the "deferred period" as defined in the second schedule to the policy and which is specifically identified as "26 consecutive weeks in each period of disablement". The defendant did not indicate any intention not to honour the policy until on or after 18^th September, 1998 (letter, Susan Doherty, Senior PHI Claims Assessor, Irish Life to Joan Bray, Cregan McGuinness (L & P) Limited Insurance Brokers to Teagasc). The evidence was that the plaintiff himself only became aware of this position on 20^th December of that year, a little more than five months after his retirement had taken effect.

The defendant's position may be summarised thus. Various descriptions have been made of the plaintiff's condition. But no diagnosis has been made of a condition which renders him eligible under the policy. Insofar as any diagnosis has been made by either the plaintiff's or the defendant's doctors such diagnosis is not sufficient to constitute either total or partial disability such as would render the plaintiff eligible to avail of the policy.

The Relevant Provisions of the Policy

It is now necessary to consider the provisions of the policy. In the introduction it is stated its purpose is to provide insurance in respect of accidents occurring to insured persons or sickness of insured persons. The first schedule reads as follows:-
"Contingency Covered
1. Total disablement of any of the Insured Persons from carrying out the duties pertaining to normal occupation or following a period of total disablement to be decided by the Company partial disablement of an Insured Person from carrying out the duties pertaining to his normal occupation where any such disablement or partial disablement arises from bodily injuries sustained or sickness contracted by that Insured Person." (The absence of any punctuation reflects the precise terms of the policy).

"Benefit

2. (a) Amount – In the event of -
(i) Disablement as in provision 1 above and the Insured Person not undertaking any other occupation for profit or reward, the payment of a yearly amount equal to the Benefit stated in Second Schedule,

(ii) Disablement as in provision 1 above but the Insured Person taking some other occupation for profit or reward or re-undertaking his normal occupation with loss of earnings as a result of such disablement – the payment of a yearly amount equal to a proportion of the Benefit. The proportion of the benefit payable shall be that proportion which the insured persons monthly loss of earning as a result of such disablement bears to the average monthly earnings during the period of 12 calendar months, or such other period as the Company may agree, prior to the commencement of his disablement. For this purpose "monthly loss of earnings" shall be calculated as the Insured Persons average monthly earnings during the period of 12 calendar months prior to the commencement of his disablement less eighty five per centum of his current monthly at the commencement of payment of the proportion of the Benefit.

(b) Duration: Benefit shall become payable from the expiry of the deferred Period shown in the Second Schedule and continued throughout the disablement up to normal retirement date or date of prior death."

Claims procedure is outlined at clause 8 of the policy as follows:-

"Claims Procedure, Clause at pg.8
Written notice shall be given to the Company at least one calendar month prior to the date on which the Benefit shall become payable. All certificates, information and evidence required by the Company shall be furnished at the expense of the Insured Person and shall be in such form and of such nature as the Company may prescribe. The Insured Person as often as required shall submit to medical examination on behalf of the Company in respect of any alleged disablement. Failing production of such evidence or provision of such facilities within such time as the Company shall deem reasonable all benefits shall cease to by payable hereunder."

In the second schedule "Insured Person" is defined as:-

"Insured Person means Eligible Employee in respect of whom an application for insurance under this Policy has been received by and accepted by the company provided always that a person shall cease to be an insured person -

(1) Upon ceasing to be a member of the grantees or (ii) ceasing to be an employee of the employers or (iii) on ceasing to be eligible under the provisions of this policy whichever shall first occur."

Deferred period is defined as follows:-
"Deferred period means 26 consecutive weeks in each period of disablement."

And finally, the benefit under the policy is defined as:-
"The Benefit means in respect of each Insured Person: a yearly amount equal to seventy five per centum of the Insured Person's salary as at the renewal date next preceding the injury or the commencement of sickness in respect of which a claim was made inclusive of an early retirement pension entitlement. Provided that where the benefit has been paid for twelve consecutive months in any period of disablement, the amount of the benefit shall increase automatically at the rate of five per centum per annum compound for the remainder of that period or by the average increase in the Consumer Price Index during the period of payment, if less."

Interpretation of the Policy
64. Submissions have been made by the parties as to the law governing the interpretation of life assurance contracts.

In particular both plaintiff and defendant rely to a degree on the decision of the Court of Appeal in the case of Haghiran v. Allied Dunbar [2001] 1 All E.R. (Comm) 97. While this decision is referred to in greater detail below, it is common case that, in general, in the analysis of the plaintiff's symptoms, an objective test must be applied by the court.

Next, in the interpretation of terms, the "reasonable man" test must be applied.

In Robertson v. French [1803] 4 East 130, Lord Ellenborough stated at p. 135 that in relation to such contracts:-

"It is to be considered according to the sense and meaning as collected from the terms used in it, which terms themselves are to be understood in their plain, ordinary and popular sense, unless they have generally in respect of the subject matter, as by known usage or trade, or the like, acquired a peculiar sense, district from the popular sense of the same words; or unless the contents evidently points out that they must be understood in some other special and peculiar sense."

Thus the aim is to find the meaning which the document would convey to a reasonable person having all the background knowledge necessary and reasonably available to the parties, including anything which would have affected the way a reasonable person would have understood the policy, but excluding previous negotiations and subjective intent. (See ICS Limited v. West Bromwich Building Society [1998] 1 WLR 896). In summary therefore the terms of the contract are to be interpreted in accordance with the common sense principles by which any serious utterance would be interpreted in every day life.

Liberal Interpretation

A "liberal interpretation" is to be imparted to the terms of the policy. In the words of Pollock B. in Sheridan v. Phoenix Life Assurance Company [1858] E.L, B & E.L. 156:-

"If there is any doubt, we think that of all instruments that come before us, none requires a more liberal construction than a life policy."

The adoption of this approach in practice has effects similar to construction contra proferentem i.e. construction against the insurer.

Reasonable Expectation

It has been submitted on behalf of the plaintiff that one approach which should be adopted in this case is to rely upon a doctrine of reasonable expectation. In the course of submissions senior counsel for the plaintiff Michael McGrath S.C. refers to an article written by Professor Eric Holmes in the University of Pittsburgh Law Review (1978) where in it is stated that the general law of contract:-

"Seeks primarily to protect the reasonable expectations of the parties induced by promise making." (39 U. Pittsburgh Law Review 381, at p.396, fr. 65).

This view has also been enunciated with regard to insurance policies in the Scottish case of Sangsters Trustees v. General Accident Insurance Corporation Limited [1896] 24 R (Court of Session) per Lord Stermonth-Darling (PA at p. 57).

The courts of England and Wales have been reticent in accepting this approach. In recent years a similar, if differently worded approach has been developed. In the case of Cook v. Financial Insurance Company [1998] 1 W.L.R. 1795, a disability insurance case, Lord Lloyd (with whom Lord Steyn and Lord Hope agreed) held that a certificate of insurance which had been received by a self employed builder who had contracted disability insurance must be construed in the sense in which it would have been reasonably understood by him as a consumer.

Clarke in the Law of Insurance Contracts, 4^th edition, (London, 2002), at p.435, identifies the categories of reasonable expectation "scenarios" which have been applied in England and Wales. These include unilateral mistake, fraudulent or negligent misrepresentation and legitimate expectation. They also include the application of the doctrine of "repugnancy", closely aligned to the doctrine of fundamental breach as enunciated by the Supreme Court of Ireland in Clayton Love v. B and I [1970] 104 I.L.T.R. 157.

In Clayton Love it was held that an exclusion clause which was so drafted as to exclude the defendants from any liability for deterioration of a cargo of scampi they were transporting was so wide so as to amount to a justification of a fundamental breach of the contract which the court was not prepared to uphold. Of particular note in that case was the fact that one of the parties was in a much weaker bargaining position than the other and so required protection. The use of the doctrine of fundamental breach is not limited to exclusion clauses. Indeed where one of the parties is a consumer such as the plaintiff in the instant case it is submitted that the reasonable expectations of that consumer must be upheld by the court.

The Policy as a "product"

It is also submitted that the policy here should be seen as a "product" and should be subject to the same rules of law. The plaintiffs rely on the dictum of Steyn L.J. (as he then was) in First Energy (U.K.) Limited v. Hungarian International Bank Limited [1993] 2 Lloyds Reports 194 (at p. 196):

[A] "theme that runs through our law of contract is that the reasonable expectations of honest men must be protected. It is not a rule or a principle of law. It is the objective which has been and still is the principal moulding force of our law of contract. It affords no licence to a Judge to depart from binding precedent. On the other hand, if the prima facie solution to a problem runs counter to the reasonable expectations of honest men, this criterion sometimes requires a rigorous re-examination of the problem to ascertain whether the law does indeed compel demonstrable unfairness".

United States Authorities on Expectation

The plaintiff also relies on a number of United States cases which, it is submitted, are sufficiently akin to the common law doctrine of reasonable expectation as to be applicable. Two cases are cited which hold that if insurance is sold under a name that suggests cover wider than that actually offered, a court will enforce the insurance to the extent that meets the expectations of the insured.

In Kievit v. Loyal Protective Life Insurance Co. 2d (1961), the term "accident" insurance was sold to a man aged 48 who later suffered an accidental blow to the head which triggered latent Parkinson's Disease. The insurer pleaded an exception of "disability or other loss resulting from, or contributed to by any disease or ailment". The court noted that a policy holder would expect this kind of accident to be covered and that if it were not so covered the insurance would be of little value to a man of that age. The court refused to read the exception literally, for if it did, "the policy would be of little value to him since disability or death resulting from accidental injury would in all probability be in some sense contributed to by the infirmities of old age" (at p. 30).

In Riffe v. Home Finders Associates 517 S.E. 2d 313 (1999), a case involving exclusions in "home warranty" insurance, the court referred to the doctrine of reasonable expectation, which it associated with a rule against absurdity and a rule against construction which would defeat the purpose of indemnity thus requiring that the language be "strictly construed against the insurer in order that the purpose of providing indemnity not be defeated", (at p. 319).

The plaintiffs submit that there was nothing in the policy itself to negate the plaintiff's honest belief that he would be covered in the particular circumstances of his condition. They contend that, given the overlap of the principle of contra proferentem, the disputed words in the policy relating to "total disability", "bodily injury" and "sickness" must be at the very least be construed as meaning what a reasonable man in the plaintiff's position would have expected them to be. Indeed as the policy was a standard form policy and the plaintiff was a "consumer", the plaintiff submits that the meaning given to those words should be the meaning that the plaintiff himself expected them to mean. The plaintiff submits that if an insurer promises insurance cover that is what he must provide. To do otherwise would be to undermine the principal reason for the existence of the policy, create a misleading impression and thereby constitute a fundamental breach of the insurance contract which the courts are loathe to permit.

It is further submitted that on the evidence there is no indication other than the plaintiff is an "honest" man. This has been referred to by his general practitioner Dr. Walsh in correspondence and in evidence to the court. It is contended that the genuineness of the plaintiff's complaints have also been accepted by the defendants' medical examiners (see for example Dr. Susan Sant in her report dated the 24^th April, 2001).

I do not accept that Dr. Sant's evidence goes as far as is contended for by the plaintiff. She states that the plaintiff presented with a chronic polyarthralgia. She adds that he does NOT satisfy the defined criteria for a diagnosis of fibromyalgia nor does he have inflammatory arthritis. She states that general examination was normal, the plaintiff had evidence of tenderness in the trapezius muscles but had free and full range of movement in all his joints at both upper and lower extremities. She found no neurological findings. Nor did she find evidence of any sign of it.

So it is fair to point out however that Dr. Sant does identify further treatment options that have been found to be successful with patients with the possible diagnosis of fibromyalgia. But she points out that, in her view, the plaintiff is currently fit for full time work but he does not appear to be motivated to return to work as he genuinely believes that physically he is unable to do so. Finally she states that, in general, patients with chronic polyarthralgia, in the absence of any defined inflammatory process usually have an entirely benign outcome, lead full lives, remain mobile, and have no joint deformity or long term disability.

Mr. McGrath S.C. submits that the court should have regard to the totality of the evidence, the circumstances of the plaintiff, and the time of his reluctant retirement as a basis for the finding that he had reasonable expectation that his policy of income protection could cover up to 70% of his annual salary up until retirement. It is contended that it would be demonstrably unfair to deny the plaintiff coverage at this point. The plaintiff points also to the fact that Teagasc, by their conduct in their acceptance of his total disability, added to the plaintiff's expectation that he would be covered under the policy. Teagasc contributed to this by granting the plaintiff early retirement with 50% of his annual pay, thereby leaving the defendants to make up the remaining 25%. The plaintiff submits that the decision by Teagasc to accept the plaintiff's total disability was based on paragraph 17 of the ACOT Surviving Spouse and Children's Contributory Pension Scheme, 1985 which requires that, for a person to retire because of permanent infirmity, medical evidence must be submitted that the member is incapable, from infirmity of mind or body, of discharging the duties of his post and that such infirmity is likely to be permanent. This provision was the basis of the decision by Teagasc to grant the plaintiff early retirement. It is contended that having regard to the similarity of these provisions with that of the policy in suit, Irish Life should concur with the assessment and indeed, furthermore are duty bound by the contract and equity to provide the remaining 25% pension payment until retirement.

Estoppel

The plaintiffs submit also that they are entitled to rely upon the doctrine of estoppel. (See McNeill v. MacMillan and Co. Ltd where Lord O'Brien LCJ in endorsing a number of early authorities, held that estoppel by representation could be a cause of action particularly where there was an underlying contractual obligation). Counsel for the plaintiff submits:

1. That he was led to believe by the terms of the policy, and the defendants ambiguity in failing to specify the degree of coverage, that he would be covered by the policy for "sickness";

2. This belief was reaffirmed by the findings of his medical experts and the actions of his employer in terminating his employment and;

3. That at all times the plaintiff believed and was effectively led to believe that he would be covered under the policy.

I do not accept that there is sufficient, or any evidence in this case to raise any issue regarding the reasonable expectation of the insured at least, in the sense which it has been advanced. I do not consider that on the evidence the policy of insurance was totally unsuitable for the purpose stipulated. Nor do I accept that, on the facts of this case the policy, to quote Lord Lloyd in Cook v. Financial Insurance Company [1998] 1 WLR 1765 to 1768 " … must be construed in the sense in which it would have been reasonably understood by him as a consumer". There is no evidence upon which to apply the dictum of Steyn L.J. in the First Energy (UK) case (cited earlier) as to reasonable expectation. While the United States cases cited do indeed illustrate the English concept of "misleading impression", I do not think that on the evidence they are apposite in the present context. No evidence has been adduced that the plaintiff ever turned his mind to the terms of the policy, until the time of his retirement, save that he was aware that it covered him and his colleagues in the event of sickness (P 87 – 92 Day 1). While no real imputation has been cast against the plaintiff's honesty or the genuineness of his belief in his symptoms, such honesty in itself does not give rise to a cause of action on the basis of estoppel or reasonable expectation. Nor do I consider that on the facts as recited earlier, the plaintiff is entitled to rely upon the conduct of his employers as giving rise to a reasonable expectation. The conduct of Teagasc was not that of the defendant in this case. The defendant is not to be bound as a matter of law by the conduct of the plaintiff's employers, although the evidence of Dr. O'Grady is relevant in the context to which I will refer below.

Estoppel with regard to clause 2(b)

There is, however, one area of the contract upon which such considerations arise. That is within this specific terms of the policy itself which relates to clause 2 (b), that is "duration". This provides: "benefit shall become payable from the expiry of the deferred period shown in the second schedule and continued throughout the same month up to normal retirement date or date of prior death". As has been indicated earlier the deferred period means 26 consecutive weeks in each period of disablement.

The Contra Proferentem Rule

It will be noted that the second schedule recited above contains a list of definitions relevant to the policy. But it does not contain a definition of "total disablement" or how, or by whom, such disablement should be identified. Similarly, the words "bodily injury" or "sickness" are not defined, nor is any indication given as to how, or by whom, such matters will be determined. Even in a policy dating back as far as 1989 this is a highly unusual omission, in that it must be the objective of any such policy to achieve clarity for all concerned, and by the provision of a comprehensive list of definitions to reduce or eliminate any possibility of ambiguity, especially one which might operate against the insurers.

The policy was part of a group scheme offered to employees of Teagasc and as such was in a standardised form drafted by the defendant or its agents without the opportunity for individual negotiation of terms.

As a matter of law, insofar as ambiguity or difficulty of interpretation arises, such ambiguity must be resolved in favour of the plaintiff. This contra proferentem rule applies to the interpretation of the terms "total disablement", "bodily injury" and "sickness". The language in the contract must then be construed in the context of the policy and in the circumstances of the case. It cannot be found to be ambiguous in the abstract. The aim in the interpretation of the policy must be to find the meaning which the document would convey to a reasonable person having all the background knowledge reasonably available to the parties, including anything which would have affected the way a reasonable person would have understood it but excluding previous negotiations or subjective intent.

Applying this test in the instant case, can the words "total disability" and "sickness" be interpreted in only one way, if given their ordinary and natural meaning and within the context of the document as a whole?

On behalf of the plaintiff it is submitted that the answer to this question must be no. The plaintiff submits that the word "sickness" has a number of alternative ordinary meanings. It can mean (among other things) physical ailments, mental illness, short term reversible illness or serious terminal illness. The policy itself, it is submitted, does nothing to clarify this term or narrow it down.

In the case of Maloney v. St. Helens Industrial Co-operative Society Limited [1933] 1 K.B. 293 at p. 297, Court of Appeal per Scrutton L.J. that judge stated:

"I come to the conclusion that when the chairman who made the award now under consideration used the word 'sickness' he was thinking of a workman who was prevented from doing his work and earning his wages because his body was not in perfect health."

One turns then to the submissions made by Mr. Denis McCullough S.C. on behalf of the defendant. He too relies strongly on the case of Haghiran v. Allied Dunbar [2001] 1 All ER 1 All E.R. (Comm) 97. That case dealt with the claim by a man under an income protection insurance scheme who believed that he was disabled and unable to work, such contention not being accepted by the insurance company. The defendant relies on the decision in that case which it says is to the effect that while the plaintiff therein genuinely believed that he was unable to work, the objective evidence did not support this belief, however genuinely felt, and that therefore the insurance company were not obliged to pay under the policy. The defendant submits the same principles apply to the matters in suit.

I am persuaded, however, that there are a number of significant distinctions between the instant case and that of Haghiran. In that case there were two policies, namely an Income Protection Plan ("IPP") and a Lifestyle Plus Plan ("LPP"). Under

s. 3 of the "IPP" policy there was a requirement that "in order to claim this benefit you must be able to prove Allied Dunbar's reasonable satisfaction that the Life Assured is Disabled" [emphasis added]. To claim under the "LPP" there would have to be permanent total disability from performing any occupation and that such disability meant that "in Allied Dunbar's reasonable opinion", the relevant life assurance under the LPP was to apply, if through illness or accident before the claimants 65^th birthday, (if male), the claimant was "irreversibly unable to carry out any gainful occupation whatsoever" [emphasis again added]. The policy defined the term "irreversible", "for the avoidance of doubt".

By contrast the 1989 policy effected by the defendant does not contain any like provision which requires the plaintiff's disability to be proved "to the reasonable satisfaction" of Irish Life or to be so "in their reasonable opinion". Nowhere in the policy is it expressly stated that the claimant must prove to the satisfaction or the reasonable satisfaction of the defendant's medical advisers any alleged disablement.

As a matter of law I accept that an objective test must be applied. As is put pithily by Simon Brown L.J. at page 101 para. 14 of Haghiran: (on appeal):

"The judge's task was to decide, not how disabled the claimant thought he was, but how disabled he actually was as a result of his illness."

At para 13. he stated:

"….were the appellant unable to work solely because of his pain syndrome, exacerbated as that is by his minor depressive symptoms, then his claim would be covered by the policy. Psychological overlay, or functional overlay as it is sometimes called, can aggravate an organic condition. But does there not come a point, however genuinely a claimant may regard himself as unable to work, he is in fact able to work and any non-return to work cannot properly be said to be "a result of an accident or illness" but is rather the result of his erroneous, albeit genuine, belief that he cannot work?"

I accept, that on the basis of Haghiran an objective test must be applied both as to the plaintiff's condition at the date of his retirement and also his continuing condition thereafter.

While applying an objective test it seems to me that there are the following distinguishing features in the instant case compared to Haghiran. These are first the very different provisions of the insurance policies.

Nowhere in the relevant portions of the Irish Life policy which relate to "contingency covered" is there to be found a stipulation or provision in the same terms as that in the Allied Dunbar policy referred to in Haghiran. Reverting again to Clause One in the first schedule which refers to "contingency covered", the defendant's policy provides: "total disablement of any of the insured persons from carrying out the duties pertaining to normal occupation or following a period of total disablement to be decided by the company (emphasis added) partial disablement of an insured person from carrying out the duties pertaining to have no normal occupation where such total disablement or partial disablement arises from bodily injury sustained or sickness contracted by that insured person. (thus punctuated).

Clause one does contain the phrase "to be decided by the company". However at the very minimum the clause is ambiguous. It is unclear as to whether, on the one hand the issue of total disablement is to be decided by the company, or whether on the other hand it is the period thereof. No punctuation of any type is contained in the clause. On balance it is more likely and probable that the matter to be decided by the company is the period of total disablement. In so far as the matter is ambiguous, the plaintiff is entitled to such interpretation under the countra proferentem rule as benefits him. As a matter of law the clause should therefore be interpreted as permitting the company to decide the period of total disablement, but not the issue of total disablement itself. Similar considerations apply in relation to the interpretation of the term "sickness" to which reference has been made above. In either case, it is accepted that it is ultimately a matter for the court to interpret applying objective criteria.

On the basis of the evidence the following conclusions may be made:

1. That the preponderance of medical evidence available for the period defined as the "deferred period" was that the plaintiff was suffering from a disability which justified his retirement. Insofar as Dr. Kinsella's views might be interpreted to the contrary they were expressed outside the 26 week deferred period on the 4^th September 1998. Similar considerations apply to the views of Dr. Mark Phelan in his report dated the 7^th August, 1998. It will be noted incidentally that it is not open to the defendant to contend that they were unaware of the plaintiff's intentions to avail of retirement within the deferred period. This is clear from the letter addressed from Miss Caryn Philip of Irish Life to Dr. Phelan dated the 29^th June, 1998, requesting that he see him for the purposes of assessment.

The plaintiff was absent from work from 12^th January until 18^th July. This was upon the basis of Dr. Walsh's medical reports which were accepted by his employer. Insofar as is relevant to the question of the plaintiff's determination to retire these reports were supported by Dr. Alan O'Grady the medical adviser to Teagasc who on the 21^st April, 1998, wrote:

"I have spoken to Dr. Walsh regarding the above man. Edmund O'Reilly has rheumatoid arthritis which has not responded to medication. He has been seen by a rheumatologist. I do not consider that he will be fit to return to work. Consideration should be given to retirement on grounds of ill health."

Thus the only contemporaneous first hand evidence relating to the plaintiff's medical condition is that of Dr. Walsh who by the 12^th January, 1998, had concluded that the plaintiff was suffering from rheumatoid arthritis. In his report of September 1998, Dr. Kinsella stated that by late Spring 1998 the plaintiffs symptoms had worsened, although there was little in the way of objective findings. He was of the view that the plaintiff continued to have arthomyalgia, making it difficult for him to work, although he felt he might be able to do work of a less heavy nature. Dr. Kinsella considered that the plaintiffs symptoms were genuine and added "he will clearly have a degree of permanent partial disability." In addition Dr. Alan O'Grady had expressed the views outlined above, that is that the plaintiff had rheumatoid arthritis which had not responded to medication.

Thus the evidence, which was before the court, which relates to the relevant "deferred period" of 26 weeks is to the effect that the plaintiff was suffering either from rheumatoid arthritis or polyarthralgia and that his symptoms were such as would justify his retirement on grounds of ill health (Dr. Walsh and Dr. Alan O'Grady) are such that he made be subject to permanent partial disability (Dr. Kinsella). The remainder of medical opinion was formed outside the "deferred period". Having regard to this sequence of events: (i) the plaintiff was entitled to proceed on the basis of the information available to him; (ii) I consider the defendant is estopped by reason of efflux of time and the reliance of the plaintiff from denying the plaintiff's entitlement to so rely.

One turns then to the question of the period of the plaintiff's disability.

It must be accepted in the first instance that there is a significant conflict of evidence on the plaintiff's diagnosis. Reference has already been made to the findings of Dr. Patrick Kinsella on 4^th September, 1998.

The plaintiff continued to be seen by Dr. Walsh in 1999 and subsequent years.

It is now again necessary to briefly review and summarise the findings of the consultants retained by the plaintiff and defendant. As of the 9^th November, 1999, Dr. Maurice Barry consultant rheumatologist concluded that the plaintiff had widespread pain and evidence clinically of Fibromyalgia. He considered that he was unfit to return to his former or similar occupation. In his report (which one infers was dated early in 2000) to Irish Life, Dr. Barry maintained his position considering that the plaintiff had read about Fibromyalgia and identified with it. He added that most people with Fibromyalgia work normally: of those who feel unable to work, their inability to carry out their normal duties isn't usually subjective. He felt that this was the case of the plaintiff. He was unable to ascertain when the plaintiff would return to work.

As of July 2001, Dr. Barry had seen the plaintiff on a number of occasions, the most recent being the 9^th May, 2001. He stated that he considered that the plaintiff's symptoms are "on the realms of Fibromyalgia/Chronic Pain Syndrome". He was in no doubt that the plaintiff felt considerable pain and felt that he was not able to work with this pain. He added that the majority of people with Fibromyalgia or Chronic Pain Syndrome are able for work but he believed that the plaintiff would have difficulty coping with the symptoms if he were to make a return to work. He therefore concluded that he was unfit for work.

This opinion was maintained by Dr. Barry in evidence who considered that there was evidence of Chronic Pain Syndrome with a history going back as far as 1984. He considered that the plaintiff was a very genuine individual and felt he was unfit for work from the first time he saw him. He did not consult with the plaintiff's general practitioner because he considered this unnecessary because of the comprehensive medical file he received from Dr. Walsh. In cross examination he conceded that partial disability as opposed to total disability can be as far apart as 20% or 70%. He considered that the plaintiff had a degree of chronic psychological distress and that stress was a significant factor in his diagnosis. He added that the plaintiff's symptoms changed between 2001 and 2004, and that he saw more muscle tenderness during the latter period. He accepted that 90% of fibromyalgia patients can work and also that of the 10% who are unable to work, such inability arises from subjective reasons. He stated: "I would consider these subjective but a psychologist would say otherwise. From the standpoint of a psychiatrist he would say subjective signs are objective". He concluded that he was unequivocally of the view that the plaintiff was totally unfit for work.

Dr. Brian Mulcahy, consultant rheumatologist, also testified on behalf of the plaintiff. He testified that he had seen the plaintiff four times in total, twice in the year 2000, once on the 5^th April 2001, and most recently in August, 2004. He stated that he had spoken to his general practitioner and consulted with him on the plaintiff's symptoms. As of the 5^th April, 2001, Dr. Mulcahy testified that the patient had Chronic Pain Syndrome and remained significantly symptomatic. He again complained of daily pain particularly in the lower limbs which was associated with profound fatigue despite receiving Effexor 37.5 mgs twice daily. He was unable to determine the precise aetiology. He concluded that because of the elapse of time of nine years from the plaintiff's initial presentation to his general practitioner, it was unlikely that the symptoms were going to subside. In that regard he could not see him returning to fulltime employment. This view was confirmed when he saw the plaintiff and reported to his solicitors on the 7^th October, 2004, and stated "again I am unable to see Mr. O'Reilly returning to fulltime employment".

It is essential to note however, that in the course of cross-examination Dr. Mulcahy was careful to distinguish between the plaintiff's ability to engage in fulltime as opposed to part-time employment. At the conclusion of cross-examination by Mr. McCullough the following exchange took place:

"243 Q. Would it be fair to say that pretty much in every case that you have dealt with you would be advising the patient to return to at least part-time work on the basis that that is going to help rather than hinder?

A. We are loath to suggest that a particular patient can never return to employment.

Q. You do not suggest, I am sure, that Mr. O'Reilly falls into any different category?

A. On the basis of my assessment of Mr. O'Reilly under the notes that have preceded, I could not disagree with that."

On further questioning Dr. Mulcahy confirmed that in his view the plaintiff is sick but that he was not aware as to what was causing it.

As of the 12^th December, 2003, the plaintiff's general practitioner had, as has been set out earlier, concluded that the plaintiff was an honest and genuine man.
Dr. Walsh was of the opinion that the plaintiff was suffering from chronic pain syndrome of unknown aetiology and was unable to continue working. He was of the opinion that since 1998 his symptoms were sufficiently disabling to make it necessary for him to retire from work as Chief Agricultural Officer on health grounds.

On behalf of the defendant, Dr. Mark Phelan who saw the plaintiff just once on the 6^th August, 1998, did not consider that the plaintiff had any current disability regarding his stated occupation. He considered that he had mild inflammatory arthritis which may appropriately be diagnosed as sero negative rheumatoid arthritis.

Mr. Michael Kelly who examined the plaintiff once in October, 1998 considered that the plaintiff had Arthralgia which he described as subjective joint pains. He did not consider that there was any objective evidence of sydivitious, he was unable to give a diagnosis, he did not find any evidence of active arthritis. He did not consider him unfit for work.

Dr. Frances Stafford, consultant rheumatologist, who examined the plaintiff once only in March, 2000 considered that the plaintiff had widespread joint pain. She stated that there is no diagnostic test for fibromyalgia so that it was difficult for her to be objective about it. From the plaintiff's description of his symptoms Dr. Stafford did not consider that they were severe enough to warrant disability. She considered that the plaintiff did not appear motivated to return to work as he seemed to believe he was not able to do so.

She added that even if one were to accept that the plaintiff had fibromyalgia which she stated was "somewhat debateable" the rule of thumb in that condition is that a patient's symptoms may vary and tend not to get worse than those present at the time of diagnosis.

As referred to earlier, Dr. Susan Sant concluded that the plaintiff presented with chronic polyarthralga although he did not satisfy the defined criteria for fibromyalgia. She found it possible to make a clinical diagnosis of fibromyalgia with a report of chronic widespread pain and a finding of multiple tender points. The plaintiff presented with a history of chronic widespread pain but did not satisfy "entirely" the tender point count necessary for a diagnosis of fibromyalgia. (The tender point count is a series of points of reference which are adopted for the purpose of ascertaining whether or not a patient may be diagnosed with fibromyalgia.)

She added that the plaintiff did not appear motivated on returning to work as he genuinely believed that physically he was unable to do so. Also, she concluded, that in general, patients with chronic polyarthralgia, in the absence of any defined inflammatory process, usually have an entirely benign outcome, lead full lives, remain fully mobile and have no joint deformity or long-term disability. In evidence she said "If you accept the subjective descriptions then one would accept that the plaintiff is unfit for work" but, she added "otherwise the test becomes entirely subjective".

Consideration of the Medical Evidence

Were it necessary to arrive at a conclusion on the plaintiff's diagnosis the task facing the court would be difficult indeed. There is a stark conflict, and the task of resolving such conflict would be both unenviable and invidious.

However, having regard to the authorities cited earlier and provisions of the policy there is sufficient evidence to conclude that while the diagnoses of the various eminent consultants may diverge there is in total sufficient evidence upon which it may be concluded that the patient was suffering from "illness" or "sickness" and that this condition has to varying degrees continued to date.

This does not conclude the issue. For one must apply the objective test to the plaintiff's continuing condition in the same manner as to the disability which gave rise to his retirement.

Again one must return to the statement of Simon Brown L.J. in Haghiran: "does there not come a point, however genuinely a claimant may regard himself as unable to work, he is in fact able to work, and any non-return to work cannot properly be said to be "a result of an accident of illness" but is rather a result of his erroneous, albeit genuine, belief that he cannot work?"

It has been accepted by Dr. Mulcahy that as of April, 2001 his view was that it would have been appropriate for the plaintiff to try to return to work albeit on a part time basis.

With regard to the evidence for the period from the 18^th July, 2001, it is clear that the two consultants retained by the defendants, Dr. Phelan and Dr. Kelly, to varying degrees felt that there was an absence of objective findings, although Dr. Kelly concluded that the plaintiff had arthralgia which he described as subjective joint pains.

Dr. Stafford who examined the plaintiff in March, 2000 considered the question as to whether the plaintiff had fibromyalgia was "debateable". She stated the plaintiff had widespread joint pain with tenderness in some areas seen in patients with Fibromyalgia. Dr. Sant who examined the plaintiff in March, 2001 considered that the plaintiff presented with chronic polyarthralgia.

Therefore it can be seen that there is some variation in diagnosis even between the defendant's medical advisors, with the latter two in date, Doctors Stafford and Sant, being prepared to countenance a diagnosis of either fibromyalgia or polyarthralgia. Both the latter consultants examined the plaintiff after an elapse of two years from his retirement. They also had access to a considerably greater degree of information from their medical colleagues than Dr. Phelan or Dr. Kelly did who each, saw the plaintiff on one occasion only in the year 1998, and without the benefit of being provided with or being able to consider the evolving views of their medical colleagues.

Having regard to these circumstances, the court may have regard to both the findings of Dr. Mulcahy and Dr. Barry on behalf of the plaintiff, and also the findings of Dr. Sant and Dr. Stafford as outlined, in arriving at a view regarding the nature and extent of the plaintiff's disability from 1998 until April, 2001.

Having regard to the foregoing findings one may conclude that the plaintiff suffered from total disability until April, 2001 and that thereafter, on the basis of the evidence, of Doctors Mulcahy, Barry, Sant and Stafford he suffered from a degree of disability from February, 2001 until the 7^th October, 2004, the date of Dr. Mulcahy's last report. In making this finding I am therefore preferring (i) the evidence of medical consultants who had the opportunity of examining the plaintiff on a number of occasions (ii) preferring the evidence of those consultants who were provided with the findings of their colleagues and had the opportunity of considering a greater period of the plaintiff's history.

On the basis of the evidence I consider the degree of disability as 50% for that period. In particular I must bear in mind Dr. Mulcahy's evidence in cross examination to which reference has been made earlier in this judgment at paragraph 105.

With regard to the period from October, 2004 onwards, I consider it reasonable to proceed upon the basis of the aforesaid evidence that the plaintiff will continue to suffer a diminishing degree of incapacity. Having had the opportunity of assessing the plaintiff in the witness box during the course of this hearing I consider that the degree of such future incapacity will be 20% for a period of 12 months from October, 2004 to end October, 2005. Thereafter on an objective assessment of the available evidence he will, as a matter of probability, have made a full recovery and suffer no continuing incapacity within the terms of the policy in suit.

In summary therefore the findings of the court are as follows:

Period of total disability: 12^th January, 1998, to 18^th, April, 2001.

Period of partial disability (50%): 19^th April, 2001, to 7^th October, 2004;

Period of partial disability (20%): 8^th October, 2004, to 31 October, 2005.

Approved: MacMenamin J.