DONALD JAWAHIR v N.E.M. (WEST INDIES) INSURANCE LIMITED

c., #020 SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIl) A.D. 1996 ~ Suit No. 286 of 1993 Between DONALD JAWAHIR I:12intiff r l' - and N.E.M. (WEST INDIES) INSURANCE LIMITED Defendant c: ;r r t Mr .. C. Rambally and Mr. M. Francois for Plaint r~ Mrs S. Lewis and Miss C. Lewis for Def L:. 1996: May 14; June 7. c: JUDGMENT r Matthew J. On April 30, 1993 the PI iff filed a writ of summons l wi h Statement of Claim asking for :Jet n~jaI1t the sum of $345,000.00, erest and COSts. rr If In s Statement of Claim the PIa n if a e e -, ~ ... c:t __ +- < 1991 he insured his bui situated at ua Panse 1 Castri s with ~ Defendant and during the contractual period 1 on February 5, 19 2 { the building was completely dest::::::::~T.:'. - ... ;:~ ....... \...A. __ --.:;:t L the t- (i ~ Defendant has refused to pay him the insured sum f $345,000. t- Defendant entered appearance on May 18, 1993 and filed a defence and counterclaim on September 241

993.The essence t :! defence is that no policy existed between t Plaintiff and the n Defendant because the Plaintiff untruthful answe question No. r -I b ,~ the insurance proposal and Defendant ente t icy of insurance in pursuance of the truth ness of the answers the proposal. The Defendant did not in fact have a countercla for r what it described as a countercla it cia not against. the Plaintiff. However there is included an '~l.d: leadi paragraph 13 which is in fact supportive of its defence. ~here he Defendant stated that it was ded in the declarati tached to the pronos~l form that the said proposal should fcrm the basis of the policy and that the said declaration is deemed t be incorporated in the said policy. In fact the declaration does not say all that. It mere stipulates the agreement of the Plaintiff that the proposal s the basis of the contract between t P a if and t.he Defendant. A request for hearing was filed on November 18, 1 93. At the trial the Plaintiff gave evidence but. ca~le tnesses. Hazel Joseph, the Assistant Manager of Minviel and stanet. agent for the Defendant, gave evidence on behalf of t.he defenc and Charles and led three witnesses. They were Lydia Blasse, Claudius Francis. he lnsurance Donald Jawahir stated that when he went to effect. icy I he spoke and dealt with Peter Bergasse, deceased. He that Bergasse took the proposal form and filled it LOI In and then asked him to sign it. At first he said Bergasse did not explain anything in the proposal to him and d not re t proposal form to him line by line. He stated in particular that Bergasse did not read out to him question 4 in the proposal form. I shall set out that question below. ·L He stated that in or about 1988 owned a pick up T142 and a Bedford Tipper, H3716. He said these vehicles were insured c Alliances and St. Lucia Insurances did not speak co im a about the policies in respect of che cwo vehic~ s. :-:e a d not remember receiving corre concerning those two vehicles. He said in 1985 he had a building at Forestiere insured with St. Lucia Insurances and that whil:::: the policy was n effect he building was affected by fire p?rtial He sa the cook about 2 - 3 years to pay him and because of that de ay he did not ask St. Lucia Insurances to insure anything for him. He said after the time period of the vehicle s had run out he s went elsewhere. He said he could not remember rece rom St. Lucia Insurances in May 1988. When he was cross-examined reiterat that it was 3ergasse who leted the proposal ~0r m. When he was chall respect of certaiil answers, for example, che answer co quest and could Bergasse arrive at such answers he said: say now very few of these questions Mr. Bergasse asked me. He stated that he did not remember rece any letter rom St. Lucia Insurances cancelling the policies of the two vehicles or receiving in any letter a cheque for $103.00 as represent ng the balance of premiums returned. He said he is not telling lies and is speaking the truch and he not deliberately give the wrong answer to question NO.4. He said he did not know at the time that St. Lucia Insurances had ancelled the policies on his vehicles. After the fire which destroyed the insured prope In 1992, Minvielle and Chastanet became agents of t Def September 1992. Hazel Joseph stated chat she became aware f the ,~, claim after Minville and anet took over che She a d files in respect of that claim was handed over t her she not pay the Plaintiff any money. She said she appo ed oss usters, Francis Rosemin and Company, and t recommendations on the claim. said re the laintiff s premium. a Blasse has been an insurance clerk with J.E. 3ergasse for t past fourteen years. She said knew the Pair c f f and was familiar with the proposal form which the Plaintiff had c red evidence. She said her handwriting is on the form. She said asked the Plaintiff quest and she ti f t answers as the Plaintiff indicated. She said on the basis f he answers in the she entered into contract with the Plaint ff. When she was cross-examined she said Mr. Bergasse id not ~ he and he did not give her t form after c was filled c. She said she would not complete G form without ~', ...:::; J\.....J... ~"''::j t!:1e ent the stions. Cyrus Charles has been in the employment of St. Lucia Insurances thirteen years, the last ten of which be Director. He stated that his company had an insurance on the Plaintiff f s Forestiere property and in the course of the poli there was a fire at the place and the property went up in ;:: ames and was completely burnt. He said arson was suspected but there was no concrece evidence co deny the claim so his company took a decis on co cancel t existing policies which it had on the Plalnclff's cwo vehicles. ,t.v He tendered a letter dated 25th ssed t t Plaintiff. "Mr. Mcdonald Jawahir, Forrestiere, ST. LUCIA." It is not disputed that the letter cle pu s to cance the insurances on vehicle T1427 and H3716. letter also stated a cheque of $103.00 was enclosed as representing the re premiums for the unexpired terms of the e. Charles stated that the letter was sted to the la t was not returned and that the cheque in the letter never arne to him. When he was cross-examined he said that he assumed r recel s letter for it was not returned and no otner means crmining whether the Plaintiff received t tter. He said he could not say whether the letter was istered or not. He stated further: "I have had letters in my mail box which d not bel me. I agree mistakes are made the Post ffice. Ie told me they posted things to me that I never received. There is the possibility that Plaintiff never received the letter or cheque." audius Francis is employed with the firm ?rancis s Company Limited, insurance oss usters and su;- [. S . He carried out investigations for J. E. Bergasse l ced surrounding the circumstances of the fire which dest the insured property and he stated that s investigations reveal a misrepresentation by the Plaintiff with respect to the answer to question 4 of the proposal. He was not cross-examined. ~ hink it is time to set out questions answers re evant to this matter. "3. Have you or anyone with a financial interest in this property ever suffered a loss, whether insured or not, from any peril to be insured against at this or any ot r ocation? If "yes" please stat (a) Date of loss (b) Cause of loss (c) Amount Not on this building.

4.Have you or anyone with a financial Ye No. interest in the property to be ever had a propo or policy - Re Declined, Cancelled or had Speci Terms imposed? If "yes" Please state the name of the Company and type of insurance. In her closing address Mrs. Lewis submitted that the st f the matter was in clause 4 of the proposal form. Counsel tted t t the question and answer was a material fact orming sis any acceptance of the policy of insurance. Learned Counsel referred to Halsbury's Laws of England, Fourth Edition, Volume 25, paragraphs 367 and 369. She submitted that there was a duty imposed on the Plaintiff 0 sclose truthfully the answer to question 4 and he had not done so. She referred to the following cases: RE ARBITRATION between YAGER V GUARDIAN INSURANCE COMPANY 1913 KBD "'- 38; 42. GLICKSMAN V LANCASHIRE INC. 1926 H/L 139; 143. LOCKER AND WOOLF LIMITED V WESTERN AUSTRALIAN COMPANY 1936 KBD 408; 413 -415. Modern Insurance Law by John Birds, Third Edition, page 135.

MacGillivray and Parkington on Insurance Law 7th Edition, paragraph

831.Mr Francois in reply based his submissions on two ses. He submitted that in respect of the answer to question No.4 tnere was no material non-disclosure of any facts. Seoondly, he said even if there was a materia non discI sure of s the Defendant had not scharged the 0 proof t s case for whomsoever is saying there is a fraudulent srepresentation the burden proof is on He relied on t authority of DERRY V PEEK 1899 14 A.C. 337. I should like to begin by st~ting some of the genera princ les of non-marine insurance, namely, the requirement f the utmost fa th and the duty to make sclosure f materi ~ t- ~ c:t l-;:::;. See Halsbury's Laws of England, Fourth Edition, Volume 25 paragraphs 365 and 366. The basic test of materi facts h s upon whether mind of a prudent insurer would be affect either n CH1lng whether to take the risk at all or in f the knowledge of a particular fact if it had en discI sed. refore the fact must be one affecting the risk. See 3 7. There are certain facts affecting the moral hazard and one such set of ts which it is often material to know is that relation to insurances comparable with that sought there have been ous losses or claims or that in relation to any class of the renewal of previous policies has been refused or been declined. In Re An Arbitration between YAGER AND GUARDIAN ASSURANCE COMPANY ''-' KBD 38 the claimant failed to disc se an Assurance that the Liverpool and London and 31 had lined to continue his insurance. When he cla as a result f a fire the Court held that the fact that the L. had re s to continue the policy was a material fact, t when t s fact became known to the claimant on the 20th September, t was no concluded contract, and that it was still tho d~ty of the cla tted to dO so to disclose such fact to the Guardian, and, the claimant was not entitled to treat t lCY as a val policy. Similarly in GLICKSMAN and LANCASHIRE AND GENERAL ASSURANCE a COMPANY, LIMITED 1927 A.C. 139 two partners si form, and also a declaration at the foot of the themselves that the answers to the questions were true, and that they had withheld no information that might tend t lncrease company's risk, and agreeing that the larat ons and answers should be the basis of the contract between the~ and the The fact was that an insurance company had refu3ed a proposa for a burglary insurance made by the appellant on a former occasion. House of Lords held that there was sufficient for supporting the finding of the arbitrator that the refusal the insurance office of the proposal made the appellant the former occasion was a material fact f and that fact been concealed. More relevant to the facts of the present case is the case of LOCKER AND WOOLF LIMITED AND WESTERN AUSTRALIAN INSURANCE COMPANY, LIMITED 1936 1K.B. 408. In that case the Court £ ADDeal ld t th~ 0~ligation on a person making a proposal £ r ~nsurance agalnst fire to disclose all material facts lS not ted t mat ters exclusively relating to fire risks, but extends to any matter ch would influence the judgment of the insurance company n deci whether to take or refuse the risk. The inte assured, proposal for fire insurance in respect of their ses, in answer 4. to the question: "Has t s or any other e f s declined by any other company?" answered "No." The a was issued. It subsequently appeared that some time before proposal the assured had applied to another for a policy on motorcars, but the application was decl on e misrepresentation and non-disclosure of certain facts. Held, t the nor-disclosure of this refusal of the motor car e was non-disclosure of a mate 1 fact in the a or ehe f re insurance which therefore ent~tled the fire lnsurance e the policy. is no dispute that the Plaineiff answered questi No. correctly. In a sense the answer to that stion s insurer on inquiry and if he had made the necessary iries from St. Lucia Insurances Limited he may well have found, not circumstances of the Forestiere fire, bue also the ay in payment of the claim and the resultant decis i t. Lucia Insurances Limited to canc~~ the Plaintiff's motor-car s. One might well wish to argue that the answer to question 4 of t proposal was not in fact material. f Halsburv's states in part: "However, it is sufficiene if the facts which are sclosed put the insurers on inquiry and their inqui wou d in the normal course elicit such further facts as be teria~. In ANGLO-AFRICAN MERCHANTS, LIMITED AND ANOTHER and BAYLEY 1969 2 A.E .R. 421 the plaintiff companies wished e obeain lnsurance coverage against all risks for a quantity of army us c about 23 years old, ch they h:tended for resa e c rs abroad. The plaintiffs instructed a firm of rs and informed D. (a director of the firm) thae the goods were government and that they were new. D communicated with a firm of brokers who insured the goods as new. A port of the cloth was stolen and when the plaintiffs claimed on t policy they ,~ led for non- sc of material facts. I t judgment Magaw J. held that even if it could an insurer waived his right to compla of non-dlSC received information whi would put an ordlnary, care on enquiry and nevertheless fail to rei a insurer would not have put on ry as t t prec the goods by reason 0-1= seeing them de as clothes in bales for " declaration at the of t st .ited proposal shall form the basis of the contract bet ff the Defendant. In Glicksman's case Viscount Dunedin s to say at page 143. He sa "Then I come to law of it. The law has perhaps it is just as well to state A ract insurance is denominat a contract fi s sible for the to st ate t answers certa stions shall be the s and i s there is no question as to i left, persons have contracted mater i ions. I! I adopt that statement of the law d that the answer stion 4 of the proposal s material. See sbury's and paragraphs 815, 824, and f the Sixth Edition of MacGILLIVRAY and PARKINGTON on INSURANCE LAW. I do not believe the aintiff that it was the ate Pet r Bergasse filled in the proposal form for I f a Blasse t be a witness of truth and I lieve her chat she was c who filled in the proposal for the Plaintiff and at s ctat I find that Blasse filled in the form after rece the iate responses from the Plaintiff. In particular I lieve witness that she asked the Plaintiff the question No. 4 and he answe the negative. Since the proposal form was fill as ctat 4. the difficult questions of agency do not arise consideration. See paragraph 831 et. seq. f the Seventh Edition of MacGILLIVRAY and PARKINGTON as well as Modern Insurance Law by Jonh Birds, Third Edition, page 135; BAWDEN and LONDON, EDINBURG & GLASGOW ASSURANCE COMPANY 1892 2 Q.B. 534; NEWS HOLME BROS. AND ROAD TRANSPORT & GENERAL INSURANCE COMPANY 1929 2K.B.

356.t As I said earlier I believe the Plaintiff answered If " 4 on the pIoposal form. The real issue in this ase s ther he aintiff in giving that answer lied to the lnsurers st learned Counsel for the Defendant. The insuranc ster Mr. audius Francis, had suspic as to the cause the fire t insured property and was of t view that t Plaintiff had fraudulently misrepresented f relat t the answer he gave to the said question 4. To determine s question it is crucial to find out whether the Pia iff ever ~ece t 1 tter t~d to him by St. Luc Insurances. This let er dat St 1988 was not delivered by hand to Pia iff and he d not s document to indicate that rece d There is no evidence that the letter was istered to Ii. was enclosed in the letter. re is no evidence t sed that cheque. When he was cross examined CharI s ede that stakes are made in the Post fice DeOD e have t that have posted things to him ch he never rece and he further conceded that there is the poss iii that the Pia iff never received the letter or cheque. law in this case has been correctly stated learned Counsel the Plaintiff but this case will turn on the acts. :lle£~ was no doubt in Yager's case. He was told by the of the refus company that he had bad news for him and when t cia what was the bad news the agent told him t rer was not ing to continue with the insurance. ,~ In this case there can a presumption that la iff received the letter from St. Lucia Insurances cance his car insurances. I have regard to Hal I s ~aws f Fourth Edition, Volume 17, paragraphs 35, and

1.intiff has denied reading the letter. The P a f has not shown himself to be a very truthful person. Besides ng a d~ac man he tried to show that the house at Forestiere was n partially burnt whereas Cyrvs Charles stat that the propert went in flames and was complete burnt. Nevertheless annot say on a balance of probabilitjes ~hat I am convinced that he received letter. I am therefore unable to cone wit any e f answer to assurance that when t Plaintiff gave the srepresented, ion 4 in the propos for e that he misstated, suppressed or withheld ormation. ~ am as icious as others have been but I should not be carried away cions and possibly do an ustice to t Plaint f I would accordingly enter judgment or the lainti f n f $345,000.00 and his costs to be to taxed. . . . . . . . . . . . . . . . . . . . . . . .

A. N. J. MATTHEW

PUISNE JUDGE

c., SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIl) A.D. 1996 Suit No. 286 of 1993 Between DONALD JAWAHIR and N.E.M. (WEST INDIES) INSURANCE LIMITED Mr .. C. Rambally and Mr. M. Francois for Plaint r~ Mrs S. Lewis and Miss C. Lewis for Def Matthew J. 1996: May 14; June 7. JUDGMENT #020 I:12intiff Defendant On April 30, 1993 the PI iff filed a writ of summons l wi h Statement of Claim asking for :Jet n~jaI1t the sum of $345,000.00, erest and COSts. In s Statement of Claim the PIa n if a e e -, ~ … c:t __ ~ r l’ – c: ;r r t L:. c: r rr If +- < 1991 he insured his bui situated at ua Panse 1 Castri s with ~ Defendant and during the contractual period 1 on February 5, 19 2 { the building was completely dest::::::::~T.:’. – … ;:~ ……. ...A. __ –.:;:t L the Defendant has refused to pay him the insured sum f $345,000. Defendant entered appearance on May 18, 1993 and filed a defence and counterclaim on September 241 993. The essence t defence is that no policy existed between t Plaintiff and the Defendant because the Plaintiff untruthful answe question No. t( i ~ t- A, :….!., C (‘: n r -I b ,~ 4 the insurance proposal and Defendant ente t icy of insurance in pursuance of the truth ness of the answers the proposal. The Defendant did not in fact have a countercla for r what it described as a countercla it cia not against. the Plaintiff. However there is included an ‘~l.d: leadi paragraph 13 which is in fact supportive of its defence. ~here he Defendant stated that it was ded in the declarati tached to the pronos~l form that the said proposal should fcrm the basis of the policy and that the said declaration is deemed t be incorporated in the said policy. In fact the declaration does not say all that. It mere stipulates the agreement of the Plaintiff that the proposal s 1 the basis of the contract between t P a if and t.he Defendant. A request for hearing was filed on November 18, 1 93. At the trial the Plaintiff gave evidence but. ca~le tnesses. Hazel Joseph, the Assistant Manager of Minviel and stanet. agent for the Defendant, gave evidence on behalf of t.he defenc and led three witnesses. They were Lydia Blasse, Claudius Francis. Donald Jawahir stated that when he went to effect. Charles and he lnsurance icy I he spoke and dealt with Peter Bergasse, deceased. He that Bergasse took the proposal form and filled it LOI In and then asked him to sign it. At first he said Bergasse did not explain anything in the proposal to him and d not re t proposal form to him line by line. He stated in particular that Bergasse did not read out to him question 4 in the proposal form. I shall set out that question below. ·L He stated that in or about 1988 owned a pick up T142 and a Bedford Tipper, H3716. He said these vehicles were insured c Alliances and St. Lucia Insurances did not speak co im a 8 about the policies in respect of che cwo vehic~ s. :-:e a d not remember receiving corre concerning those two vehicles. He said in 1985 he had a building at Forestiere insured with St. Lucia Insurances and that whil:::: the policy was n effect he building was affected by fire p?rtial He sa the cook about 2 – 3 years to pay him and because of that de ay he did not ask St. Lucia Insurances to insure anything for him. He said after the time period of the vehicle s had run out he s went elsewhere. He said he could not remember rece rom St. Lucia Insurances in May 1988. When he was cross-examined reiterat that it was 3ergasse who leted the proposal ~0r m. When he was chall respect of certaiil answers, for example, che answer co quest and could Bergasse arrive at such answers he said: say now very few of these questions Mr. Bergasse asked me. He stated that he did not remember rece any letter rom St. Lucia Insurances cancelling the policies of the two vehicles or receiving in any letter a cheque for $103.00 as represent ng the balance of premiums returned. He said he is not telling lies and is speaking the truch and he not deliberately give the wrong answer to question NO.4. He said he did not know at the time that St. Lucia Insurances had ancelled the policies on his vehicles. After the fire which destroyed the insured prope In 1992, Minvielle and Chastanet became agents of t Def September 1992. Hazel Joseph stated chat she became aware f the ,~, claim after Minville and anet took over che She a d files in respect of that claim was handed over t her she not pay the Plaintiff any money. She said she appo ed oss usters, Francis Rosemin and Company, and t recommendations on the claim. said re the laintiff s premium. a Blasse has been an insurance clerk with J.E. 3ergasse for t past fourteen years. She said knew the Pair c f f and was familiar with the proposal form which the Plaintiff had c red evidence. She said her handwriting is on the form. She said asked the Plaintiff quest and she ti f t answers as the Plaintiff indicated. She said on the basis f he answers in the she entered into contract with the Plaint ff. When she was cross-examined she said Mr. Bergasse id not ~ he and he did not give her t form after c was filled c. She said she would not complete G form without ~’, …:::; J.….J… ~””::j t!:1e ent the stions. Cyrus Charles has been in the employment of St. Lucia Insurances thirteen years, the last ten of which be Director. He stated that his company had an insurance on the Plaintiff f s Forestiere property and in the course of the poli there was a fire at the place and the property went up in ;:: ames and was completely burnt. He said arson was suspected but there was no concrece evidence co deny the claim so his company took a decis on co cancel t existing policies which it had on the Plalnclff’s cwo vehicles. ,t.v He tendered a letter dated 25th 1988 ssed t t Plaintiff. “Mr. Mcdonald Jawahir, Forrestiere, ST. LUCIA.” It is not disputed that the letter cle pu s to cance the insurances on vehicle T1427 and H3716. letter also stated a cheque of $103.00 was enclosed as representing the re premiums for the unexpired terms of the e. Charles stated that the letter was sted to the la t was not returned and that the cheque in the letter never arne to him. When he was cross-examined he said that he assumed r recel s letter for it was not returned and no otner means crmining whether the Plaintiff received t tter. He said he could not say whether the letter was istered or not. He stated further: “I have had letters in my mail box which d not bel me. I agree mistakes are made the Post ffice. Ie told me they posted things to me that I never received. There is the possibility that Plaintiff never received the letter or cheque.” audius Francis is employed with the firm ?rancis s Company Limited, insurance oss usters and su;- [. S . He carried out investigations for J. E. Bergasse l ced surrounding the circumstances of the fire which dest the insured property and he stated that s investigations reveal a misrepresentation by the Plaintiff with respect to the answer to question 4 of the proposal. He was not cross-examined. ~ hink it is time to set out questions answers re evant to this matter. “3. Have you or anyone with a financial interest in this property ever suffered a loss, whether insured or not, from any peril to be insured against at this or any ot r ocation? If “yes” please stat (a) Date of loss (b) Cause of loss (c) Amount Not on this building.

4.Have you or anyone with a financial Ye No. interest in the property to be ever had a propo or policy – Re Declined, Cancelled or had Speci Terms imposed? If “yes” Please state the name of the Company and type of insurance. In her closing address Mrs. Lewis submitted that the matter was in clause 4 of the proposal form. Counsel t t the question and answer was a material fact orming any acceptance of the policy of insurance. st f the tted sis Learned Counsel referred to Halsbury’s Laws of England, Fourth Edition, Volume 25, paragraphs 367 and 369. She submitted that there was a duty imposed on the Plaintiff 0 sclose truthfully the answer to question 4 and he had not done so. She referred to the following cases: RE ARBITRATION between YAGER V GUARDIAN INSURANCE COMPANY 1913 KBD “‘- 38; 42. GLICKSMAN V LANCASHIRE INC. 1926 H/L 139; 143. LOCKER AND WOOLF LIMITED V WESTERN AUSTRALIAN COMPANY 1936 KBD 408; 413 -415. Modern Insurance Law by John Birds, Third Edition, page 135. MacGillivray and Parkington on Insurance Law 7th Edition, paragraph 831. Mr Francois in reply based his submissions on two ses. He submitted that in respect of the answer to question No.4 tnere was no material non-disclosure of any facts. Seoondly, he said even if there was a materia non discI sure of s the Defendant had not scharged the 0 proof t s case for whomsoever is saying there srepresentation the burden proof is on is a fraudulent He relied on t authority of DERRY V PEEK 1899 14 A.C. 337. I should like to begin by st~ting some of the genera princ les of non-marine insurance, namely, the requirement f the utmost fa th and the duty to make sclosure f materi ~ t- ~ c:t l-;:::;. See Halsbury’s Laws of England, Fourth Edition, Volume 25 paragraphs 365 and 366. The basic test of materi facts h s upon whether mind of a prudent insurer would be affect either n CH1lng whether to take the risk at all or in f the knowledge of a particular fact if it had en discI sed. refore the fact must be one affecting the risk. See 3 7. There are certain facts affecting the moral hazard and one such set of ts which it is often material to know is that relation to insurances comparable with that sought there have been ous losses or claims or that in relation to any class of the renewal of previous policies has been refused or been declined. In Re An Arbitration between YAGER AND GUARDIAN ASSURANCE COMPANY ”-‘ 1913 KBD 38 the claimant failed to disc se an Assurance that the Liverpool and London and 31 had lined to continue his insurance. When he cla as a result f a fire the Court held that the fact that the L. had re s to continue the policy was a material fact, t when t s fact became known to the claimant on the 20th September, t was no concluded contract, and that it was still tho d~ty of the cla to disclose such fact to the Guardian, and, tted to dO so the claimant was not entitled to treat t policy. lCY as a val Similarly in GLICKSMAN and LANCASHIRE AND GENERAL ASSURANCE COMPANY, LIMITED 1927 A.C. 139 two partners si and also a declaration at the foot of the a form, themselves that the answers to the questions were true, and that they had withheld no information that might tend t lncrease company’s risk, and agreeing that the larat ons and answers should be the basis of the contract between the~ and the The fact was that an insurance company had refu3ed a proposa for a burglary insurance made by the appellant on a former occasion. House of Lords held that there was sufficient for supporting the finding of the arbitrator that the refusal the insurance office of the proposal made the appellant the former occasion was a material fact f and that fact been concealed. More relevant to the facts of the present case is the case of LOCKER AND WOOLF LIMITED AND WESTERN AUSTRALIAN INSURANCE COMPANY, LIMITED 1936 1K.B. 408. In that case the Court £ ADDeal ld t th~ 0~ligation on a person making a proposal £ r ~nsurance agalnst fire to disclose all material facts lS not ted t mat ters exclusively relating to fire risks, but extends to any matter ch would influence the judgment of the insurance company n deci whether to take or refuse the risk. The inte assured, n a proposal for fire insurance in respect of their ses, in answer

4.the difficult questions of agency do not arise consideration. See paragraph 831 et. seq. f the Seventh Edition of MacGillivray and Parkington as well as Modern Insurance Law by Jonh Birds, Third Edition, page 135; BAWDEN and LONDON, EDINBURG & GLASGOW ASSURANCE COMPANY 1892 2 Q.B. 534; NEWS HOLME BROS. AND ROAD TRANSPORT & GENERAL INSURANCE COMPANY 1929 2K.B.

356.As I said earlier I believe the Plaintiff answered If ” 4 on the pIoposal form. The real issue in this ase s aintiff in giving that answer lied to the lnsurers learned Counsel for the Defendant. The insuranc t ther he st ster Mr. audius Francis, had suspic as to the cause the fire t insured property and was of t view that t Plaintiff had fraudulently misrepresented f relat t the answer he gave to the said question 4. To determine s question it is crucial to find out whether the Pia iff ever ~ece t 1 tter t~d to him by St. Luc Insurances. This let er dat St 1988 was not delivered by hand to Pia iff and he d not s document to indicate that rece d There is no evidence that the letter was istered to Ii. was enclosed in the letter. re is no evidence t sed that cheque. When he was cross examined CharI s ede that stakes are made in the Post fice DeOD e have t that have posted things to him ch he never rece and he further conceded that there is the poss iii that the Pia iff never received the letter or cheque. law in this case has been correctly stated learned Counsel the Plaintiff but this case will turn on the acts. :lle£~ was no doubt in Yager’s case. He was told by the of the refus company that he had bad news for him and when t cia what was the bad news the agent told him t t rer was not ing to continue with the insurance. ,~ In this case there can a presumption that la iff received the letter from St. Lucia Insurances cance his car insurances. I have regard to Hal I s ~aws f 1 Fourth Edition, Volume 17, paragraphs 35, 1 and 1. intiff has denied reading the letter. The P a f has not shown himself to be a very truthful person. Besides ng a d~ac man he tried to show that the house at Forestiere was n partially burnt whereas Cyrvs Charles stat that the propert went in flames and was complete burnt. Nevertheless annot say on a balance of probabilitjes ~hat I am convinced that he received letter. I am therefore unable to cone wit any e f assurance that when t Plaintiff gave the ion 4 in the propos for e that he answer to srepresented, misstated, suppressed or withheld ormation. ~ am as icious as others have been but I should not be carried away cions and possibly do an ustice to t Plaint f I would accordingly enter judgment or the lainti f n f $345,000.00 and his costs to be to taxed. . . . . . . . . . . . . . . . . . . . . . . . A. N. J. MATTHEW PUISNE JUDGE

4.to the question: “Has t s or any other e f s declined by any other company?” answered “No.” The a was issued. It subsequently appeared that some time before proposal the assured had applied to another for a policy on motorcars, but the application was decl on e misrepresentation and non-disclosure of certain facts. Held, t the nor-disclosure of this refusal of the motor car e was non-disclosure of a mate 1 fact in the a or ehe f re insurance which therefore ent~tled the fire lnsurance e the policy. is no dispute that the Plaineiff answered questi No. 3 correctly. In a sense the answer to that stion s insurer on inquiry and if he had made the necessary iries from St. Lucia Insurances Limited he may well have found, not circumstances of the Forestiere fire, bue also the ay in payment of the claim and the resultant decis i t. Lucia Insurances Limited to canc~~ the Plaintiff’s motor-car s. One might well wish to argue that the answer to question 4 of t proposal was not in fact material. 36 f Halsburv’s states in part: “However, it is sufficiene if the facts which are sclosed put the insurers on inquiry and their inqui wou d in the normal course elicit such further facts as be teria~. In ANGLO-AFRICAN MERCHANTS, LIMITED AND ANOTHER and BAYLEY 1969 2 A.E .R. 421 the plaintiff companies wished e obeain lnsurance coverage against all risks for a quantity of army us c about 23 years old, ch they h:tended for resa e c rs abroad. The plaintiffs instructed a firm of rs and informed D. (a director of the firm) thae the goods were government and that they were new. D communicated with a firm of brokers who insured the goods as new. A port of the cloth was stolen and when the plaintiffs claimed on t policy they ,~ led for non- sc of material facts. I t judgment Magaw J. held that even if it could an insurer waived his right to compla of non-dlSC received information whi would put an ordlnary, care on enquiry and nevertheless fail to rei a insurer would not have put on ry as t t prec the goods by reason 0-1= seeing them de as clothes in bales for ” declaration at the of t st .ited proposal shall form the basis of the contract bet ff the Defendant. In Glicksman’s case Viscount Dunedin s to say at page 143. He sa “Then I come to law of it. The law has perhaps it is just as well to state A ract insurance is denominat a contract fi s sible for the to st ate t answers certa stions shall be the s and i s there is no question as to i left, persons have contracted mater i ions. I! I adopt that statement of the law d that the answer stion 4 of the proposal s material. See sbury’s and paragraphs 815, 824, and 26 f the Sixth Edition of MacGILLIVRAY and PARKINGTON on INSURANCE LAW. I do not believe the aintiff that it was the ate Pet r Bergasse filled in the proposal form for I f a Blasse t be a witness of truth and I lieve her chat she was c who filled in the proposal for the Plaintiff and at s ctat I find that Blasse filled in the form after rece the iate responses from the Plaintiff. In particular I lieve witness that she asked the Plaintiff the question No. 4 and he answe the negative. Since the proposal form was fill as ctat