This case relates to whether an insurance company (hereinafter referred to as the Defendant) 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 Plaintiff started working as a 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 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).

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 of feeling akin to that of being stung by nettles on his hands, feet and legs, and of severe stomach pain.

The Plaintiff was then referred to a consultant physician. 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 his GP on that date and again later in the year. Shortly afterwards, the Plaintiff was admitted to South Tipperary General Hospital complaining of generalised weakness, dizziness, lack of concentration and fatigue.

The Plaintiff returned to work in November 2008 and applied for the Income Protection Scheme. The Plaintiff was admitted to the scheme in or about the 19th December, 2008. The Plaintiff then gave evidence that he began to experience twitching and itching in his muscles and that he was experiencing problems with the brakes on several buses.

He then contacted Friends First and as a result he was visited by a claims assessor who completed an initial claim form in Mr. Kirby’s home incorporating Mr. Kirby’s answers to him. Mr. Kirby signed and dated this form as well as the accompanying declarations which were to the effect that all the replies given were true and to the best of his knowledge and belief.

The Defendant then arranged for a technical claims assessor to contact a specialist in occupational medicine, and asked her to examine and comment on various medical documents relating to the claimant. The doctor opined that she had serious concerns “re significant material non-disclosure at proposal stage” pointing out the Plaintiff’s medical history before he applied for the scheme as well as the non-disclosure of the various specialists.

By letter dated the 17th February, 2012, the Defendant refused the Plaintiff’s claim under the income protection scheme, stating:-
“The significance of your failure to disclose full details is such that our underwriters have confirmed that had we been aware of this information when considering your application we would not have been in a position to accept your application for membership of this scheme”.

Accordingly, the court held that there was a material non-disclosure and found in favour of the Defendant on the issue of liability. Ms. Justice Ní Raifeartaigh’s overall impression from the Plaintiff’s evidence is that his reason for not including the relevant information on the form was not because he wished to mislead anyone but because he had a conversation with someone (although not any agent of the Defendant) which led him to believe that it was not necessary to include the information in question. In my view, he was wrong in this regard, but not dishonest. The duty of disclosure is one of full disclosure; not one of leaving a trail of crumbs that the insurer is supposed to follow. For the reasons set out above, the judge found in favour of the Defendant on the liability issue.
http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/d5db44e19adb404580258399005ac2ea?OpenDocument