David Robert Zeller v British Caymanian Insurance Company Limited - Judgment

¶ ```markdown # IN OPEN COURT ## IN THE GRAND COURT OF THE CAYMAN ISLANDS ### CAUSE NO: 174 OF 2004 #### BETWEEN: - **DAVID ROBERT ZELLER** (Plaintiff) - **BRITISH CAYMANIAN INSURANCE COMPANY LIMITED** (Defendant) #### BEFORE: THE HON. MADAM JUSTICE LEVERS ##### Appearance: - Counsel for the Plaintiff: A. Turner and Ms. A. Dunsby of Turner & Roulstone - Counsel for the Defendant: Ms. I Pierce of Walkers ##### Heard: February 2-4, 2005 ## JUDGMENT ```
```markdown # Zeller sues the Defendant, British Caymanian Insurance Company Limited for:

¶ [1] Damages for breach of contract;

¶ [2] For an Order that the Defendant's cancellation of contract is invalid and of no effect;

¶ [3] Interest pursuant to section 34 of the Judicature Law; and

¶ [4] Costs. The Defendant defends the Claim and Counterclaims for the following relief:

¶ [1] That the Defendant was induced to make the policy by representations made by the Plaintiff in the application from which was misleading;

¶ [2] That the Plaintiff was not totally honest in the information given to the Defendant; The counterclaim aims:

¶ [1] A Declaration that the Defendant was entitled to avoid the policy;

¶ [2] The return of all payments made to the Plaintiff for medical treatments carried on him; and

¶ [3] Interest on the net sum. **Background** The Plaintiff, David Robert Zeller, came to Grand Cayman in November 2001, to work for Pool Patrol Limited, a company incorporated in the Islands. He had worked in the Swimming Pool Industry for 31 years at the time. He gives evidence that when he came for the interview to the Cayman Islands, he was insured abroad, but was informed that it is essential to have insurance here and therefore joined the pool employees' health with British Caymanian Insurance Company Limited under a group contract. In order to do this he had to complete a health questionnaire.
The Plaintiff alleges that he was in good health at the time of completing the questionnaire, save and except for a thyroid problem, which he had had for some several years. The Plaintiff, a 50-year-old man, states that once a year he would have a blood test performed in relation to his thyroid condition in order to renew his prescription for that condition. On the basis of the health questionnaire, British Caymanian Insurance Company agreed to cover him as an insured with effect from the 1 December 2001. However, the Insurance Company specified an exclusion for anything in relation to hypothyroidism including complications arising therefrom. On December 28, 2001, the Plaintiff, in order to perform a local physician Dr. Madden, in order to perform a

¶ [1] physical examination for a work permit application. At that examination Dr. Madden gave evidence that everything was normal and most importantly that he did not detect a heart murmur.

¶ [2] After that, the Plaintiff saw another doctor, Dr. Last in April 2003 for, as he puts it, his thyroid medicine. At that time Dr. Last detected a heart murmur with her stethoscope and thinking that this was loud and abnormal, she decided to send him to Dr. Barefoot a cardiologist for appropriate tests.

¶ [3] Having obtained permission from the Insurance Company to see Dr. Barefoot, the Plaintiff saw Dr. Barefoot and was required to have an echocardiogram. This too was approved and authorized by the Insurance Company.

¶ [4] On 11 Apr 3, the Plaintiff was diagnosed as having a valvular

¶ [1] heart disease and an atrial defect. The Plaintiff

¶ [2] despite this diagnosis was asymptomatic. Dr.

¶ [3] Barefoot referred the Plaintiff to Dr. Coy a

¶ [4] cardiologist in Miami for a second opinion.

¶ [5] Approval was once again obtained from the

¶ [6] Insurance Company for this visit. Dr. Coy, at the

¶ [7] end of April 2003, confirmed Dr. Barefoot's

¶ [8] finding and after two additional tests being taken

¶ [9] it was concluded that the Plaintiff needed surgery

¶ [10] to repair his heart. He was then referred to Dr.

¶ [11] Lamelas a surgeon, who performed the surgery at

¶ [12] Mercy Hospital. The surgical procedure replaced

¶ [13] one valve in his heart and repaired another and

¶ [14] patched the hole in his heart. This involved a

¶ [15] pulmonary bypass, an expensive procedure. 16.

¶ [17] On 2003, the Plaintiff was discharged from Mercy Hospital and was staying in Florida in order to attend follow-up visits until Dr. Coy
released him. He was finally released by Dr. Coy on 26 May 2003 and referred back to the Cayman Islands to Dr. Barefoot. Very soon after his return, the Plaintiff had a set back to his illness. He collapsed. Dr. Barefoot determined that he had an irregular heartbeat. After consultation with Dr. Coy, medication was prescribed for this condition. In November 2003, he was told to cease taking all medication, as he was fit to conduct all previous activities with the possible exception of free diving. In June 2003, the Insurance Company sent out questionnaires to the Plaintiff, as they had received information received by the insurers, as a result

¶ [1] of requesting all the medical reports for the

¶ [2] Plaintiff indicated that the Plaintiff had had a

¶ [3] heart murmur and a high cholesterol level

¶ [4] considered by the Insurance Company to be a pre-

¶ [5] existing condition, which they felt he should have

¶ [6] disclosed on his first health questionnaire. It

¶ [7] appears from June 1997 to December 2001, the

¶ [8] Plaintiff had approximately 10 visits to a doctor

¶ [9] abroad in the United States of America and he was

¶ [10] informed that he was asymptomatic for any type of

¶ [11] heart disease but that he did in fact have a heart

¶ [12] murmur, which was heard on two of the occasions.

¶ [13] The Plaintiff states the last occasion on which

¶ [14] the heart murmur was recorded was 20 February 1999

¶ [15] almost 3 years before he completed the health

¶ [16] questionnaire.

¶ [17] doctors abroad and here, the Insurance Company on

¶ [18] Bas the medical report the is tiff' based on dical r e Pla's of tin 19.

¶ [1] the 24 December 2003 wrote to the Plaintiff

¶ [2] canceling the insurance cover retroactively to the

¶ [3] original effective date of the 1 December 2001.

¶ [4] They also sought to reclaim the benefits which

¶ [5] they had already paid amounting to US$7,197.91 and

¶ [6] stated that once these had been paid, they would

¶ [7] credit Pool Patrol with a refund of all premiums

¶ [8] which they had collected. In order to support his

¶ [9] case, the Plaintiff called Dr. Last, Dr. Madden

¶ [10] and gave evidence himself.

¶ [12] The Defendant alleges that these were pre-existing

¶ [13] conditions and that had they known of these

¶ [14] conditions, one in conjunction with the other,

¶ [15] they would not have taken the risk of insuring the

¶ [16] Plaintiff and that he had pre-existing conditions

¶ [17] which he knew and the Defendant called an independent expert, Dr.

¶ [18] Stewart and a representative of British Caymanian

¶ [1] Insurance Company, Mr. Scholefield in support of

¶ [2] its case. The entire issue at hand deals with the

¶ [3] answers given by the Plaintiff in the

¶ [4] questionnaire that was filled up by the Plaintiff

¶ [5] prior to health coverage being given. It is

¶ [6] perhaps convenient at this stage to analyze the

¶ [7] particular questions at issue. Section A of the

¶ [8] Health Questionnaire reads: Check each item Yes or No (if confidentiality is desired, please make arrangements with your Group Administrator). To the best of your knowledge and belief, has any person named in this application had within the last seven years, or does such person now have, any of the following? And specific questions are asked including: Thyroid, Heart trouble, abnormal blood pressure (hypertension or hypotension), anemia, and rheumatic fever. The Plaintiff answered 1 as to: question in the affirmative, but the question as to heart trouble he answered in the negative, thereby
leading the Insurance Company to believe that he never had any heart trouble. In Section (B), the question is, "in addition to the conditions listed in Section A, to the best of your knowledge and belief, within the past five years, has any person named in this application: (a) Had a physical examination? (b) Excluding physical examination consulted a physician, health care provider, or other individual or facility for medical or surgical treatment, advice, or screening for any condition not listed in Section A? and (c) Had any departure from good health not previously mentioned in any of the above questions for which treatment or advice may or may not have been sought? The Plaintiff answered Yes to A and No to B and C. The questionnaire also had the following clause: It is understood and agreed that: The statement and answers made herein are complete and correct to the best of my
```markdown knowledge and belief. Should any statements or answers contained in this application be untrue (if such statements are fraudulent or material to the acceptance of this application), then the contract(s) may be cancelled by the Insurer and their obligation shall consist only of the return of any subscription charges actually paid, less the amount of any benefits paid under the contract. Mr. Zeller only declared that he suffered from hypothyroid disease. He did not mention the heart murmur, nor did he mention the high level of cholesterol, a condition which he had had from approximately 1997. The Defendant's Case It is the Defendant's case that Mr. Zeller was dishonest since he knowingly gave untrue answers to the questions, at the time he completed the application. The Defendant points out that Mr. Zeller claims that at the time he completed the

¶ [1] questionnaire he was in good health but that he

¶ [2] had been told by doctors, (this is supported by

¶ [3] documentary evidence) that he had high cholesterol

¶ [4] and was told to work on his diet and exercise to

¶ [5] reduce it.

¶ [6] She further submits that Mr. Zeller had known for

¶ [7] years that he had a heart murmur, certainly prior

¶ [8] to it being detected by Dr. Pecsok his doctor in

¶ [9] the U.S.A. The evidence is that he told Dr.

¶ [10] Pecsok that most of his life he had had a heart

¶ [11] murmur. This can be construed in many ways but

¶ [12] certainly, it must mean for a long time.

¶ [13] Antibiotics were advised for this heart murmur if

¶ [14] surgery of any kind was to be undertaken. Mr.

¶ [15] Zeller admitted that the doctor recommended he

¶ [16] make an antibiotic as a precautionary measure.

¶ [17] alleges that Mr. Zeller knew over a long period of

¶ [18] time that he had a heart murmur.

¶ [1] time that he had a high cholesterol problem and a

¶ [2] heart murmur, which are abnormal conditions

¶ [3] covered by section B of the application. The Defendant's case is simply this, that had they known about these conditions in conjunction one with another, they would not have taken the risk to insure Mr. Zeller. The Plaintiff's case on the other hand is that based on the evidence, the alleged high blood pressure, heart murmur and high cholesterol are not material facts at all and if I was to hold that they are in fact material facts then Mr. Zeller honestly believed they were not material. The Plaintiff alleges that these were not pre- listing ions. excondit That had no ill effects on his health and that the high

¶ [1] cholesterol was such that no medication was

¶ [2] needed. It has been conceded by the Defendant

¶ [3] that an insurer would have taken the risk at the

¶ [4] level of cholesterol, the Plaintiff had, if he

¶ [5] only had had the cholesterol problem. 6.

¶ [7] Mr. Turner on behalf of the Plaintiff further

¶ [8] argues that had these questions been material,

¶ [9] they should have been asked specifically. The

¶ [10] Defendant responds that if one was to tailor make

¶ [11] every questionnaire to suit the individual being

¶ [12] insured it would be too onerous and to expect it

¶ [13] would be unrealistic. Mr. Turner also argues that

¶ [14] the question as constructed is ambiguous and that

¶ [15] where there is an ambiguity it must be construed

¶ [16] contra proferentem, the maker of the document. ```
The Law The basic principle is that insurance involves the management of risks. The Insurance Law as it relates to the Cayman Islands is derived from the English case law and is supplemented by the Insurance Law (2001 Revision as amended), which is mainly concerned with licensing and other relevant CI legislation. An insurance contract is a contract uberrima fides or of the utmost good faith. The consequences of deliberate fraud and misrepresentation are common to all contracts. However, the parties to an insurance contract such as this are under a duty of "utmost good faith" which means that they are bound to voluntarily disclose to each other before the contract is included in the policy. Any action based on the insured's alleged breach of the duty of utmost good faith is a breach of the contract.
```html 1 innocent entitles the insurer to void the contract 2 ab intio and upon avoidance the contract is deemed 3 never to have existed. The rule was first 4 explained by Lord Mansfield in Carter v Boehm 5 (1766) 3 Burr 1905 as follows: 7 Insurance is a contract upon 8 speculation. The special facts upon which 9 the contingent chance is to be computed 10 lie more commonly in the knowledge of the 11 insured only： the underwriter trusts to 12 his representation， and proceeds upon 13 confidence that he does not keep back any 14 circumstance in his knowledge， to mislead 15 the underwriter into a belief that the 16 circumstance does not exist， and to induce 17 him to estimate the risque as if it did 18 not exist’. 20 The duty of disclosure only extends to the period 21 in the question asked. Interesting questions 22 arise in the determination of whether a fact is 23 material for those of 24 is al if d in isclo 1 25 an opinion of a reasonable or prudent insurer ```
deciding whether or not to accept the risk or what premium to charge. Even, if, the insurer had known the fact and he would not have acted differently, the fact is material. If the insurer would have needed to know it or wanted to know it in the assessment of the risks and the premium to be charged, it is sufficient to establish materiality. In **Pan Atlantic Insurance Company v Pinetop Insurance** (1995) 1 AC 50, the House of Lords appeared to attempt to mitigate this harshness by saying the non disclosure of a fact must also have induced the insurer to enter into the contract. **Ms. Pierce’s Submission on behalf of the Defendant** Mr. Biensa submits that an assured must not misrepresent or make material omissions. The test of materiality is whether a prudent insurer might be influenced in fixing the premium or
taking the risk if he knew of the fact misstated or withheld. She relies on the expert witness, Dr. Stewart and submits that his evidence confirms that any insurance company would have been influenced by all three conditions and that they would in fact have been taken as pre-existing conditions. She reminds the Court that an Insurance Contract is a contract uberrima fides and full disclosure, (without being asked) of all the material circumstances is essential. She submits that the obligation on the assured is to disclose what he knows, whether or not he thinks it is material. She relies on the case of **Bates v Hewitt** (1866) LR 2 QB 595 at page 607 per Cockburn CJ: It is well established that a material fact arises from intention, or indifference, or a mistake, or from it not being
```markdown present to the mind of the assured that the fact was one which it was material to make known''. She submits strenuously that the assured's honesty is not enough. The assured should not willfully shut his eyes to the truth. Whereas the insurer has to show that the assured had the relevant knowledge, it does not have to establish knowledge of materiality. Finally, she submits that the insurer must demonstrate that on a balance a full picture of the risk was not presented to it and that it was induced to enter into a contract by the assured's false presentation of the risk. Mr. Turner's Submissions on behalf of the Plaintiff. Turnethe Pla Mr.r for ainti 21 of r a fa nater n s thae ia agret whether is re ff is accoraf or no l or t the t 22 determined by a reasonably prudent insurer, but he ``` This text is a transcription of the content visible in the image, maintaining the original structure and phrasing.

¶ [1] does not agree that it is not for the Plaintiff to

¶ [2] determine whether the facts are material or not.

¶ [3] He also submits that the high blood pressure,

¶ [4] heart murmur and high cholesterol are not material

¶ [5] facts at all. He says that Mr. Zeller is a fit

¶ [6] man with no history of disease or serious illness

¶ [7] except for his thyroid problems and strenuously

¶ [8] urges the Court to hold that the conditions

¶ [9] allegedly not disclosed by the Plaintiff are not

¶ [10] material for several reasons including, the fact

¶ [11] that common sense would lead any person to

¶ [12] reasonably assume that if they were considered by

¶ [13] the Defendant to be material matters they would be

¶ [14] specifically dealt with in the Defendant's health

¶ [15] questionnaire. He submits that the non existence

¶ [16] of any specific question, should cause this Court

¶ [17] to de that are

¶ [18] forers in 1 and varial's

¶ [19] suspicion the evidence put forward by the

¶ [1] Defendant in support of its proposition that these

¶ [2] are material matters. In the alternative, he says

¶ [3] that if I was to hold that these are material

¶ [4] matters and should have been disclosed by the

¶ [5] Plaintiff, the questions are so ambiguous that it

¶ [6] must be construed contra proferentum, the maker of

¶ [7] the document. He relies on the association of

¶ [8] British Insurer's statement of general insurance

¶ [9] practices and urges the Court to hold that those

¶ [10] matters which insurers have found generally to be

¶ [11] material will be the subject of clear questions.

¶ [13] Mr. Turner submits that when the questions contain

¶ [14] the phrase "to the best of your knowledge and

¶ [15] belief" the honesty of the Plaintiff is relevant.

¶ [16] He submits that the Plaintiff in this case

¶ [17] honestly believed that he did not have a

¶ [18] hypertension (high blood pressure), I agree with

¶ [1] Mr. Turner on the latter aspect of his submission.

¶ [2] I will not waste further time on the question of

¶ [3] high blood pressure. The Plaintiff was diagnosed

¶ [4] as having high blood pressure on two occasions in

¶ [5] his lifetime and that to my mind is not the test

¶ [6] for a pre-existing material condition as defined

¶ [7] by Dr. Stewart. The test is high blood pressure

¶ [8] over a period of time. We are now left with the

¶ [9] question of high cholesterol and heart murmur.

¶ [10] Dr. Stewart's evidence was that all three of the

¶ [11] above health issues were conditions and there is

¶ [12] no doubt that they should have been disclosed to

¶ [13] the insurance company. He like Mr. Scholefield

¶ [14] stated that had they known this, they would not

¶ [15] have insured the Plaintiff. 16.

¶ [17] Mr. for Plaintiff

¶ [18] on se of : des we's great

¶ [19] Assurance Company Plc [1997] 3 All ER 636. In
In that case, a young man insured the contents of his flat for the sum of $12,000. Later, when his parents moved into the apartment the contents to be insured increased and the insurance was increased by him in 1999 to $16,000. The information for the quantum came from his father who suggested that he increase the value by $4000. No one suggested that in those initial years it failed to represent the full replacement value of the contents. The issue in the case was whether the appellant had misrepresented the value of the contents, as when the premises were burgled later on, the loss was assessed at just below $30,917 and accepted at this sum. The insurance company argued that given that a contract of insurance is based on the utmost of good faith and that the insured must always act in good faith, it was clear that the contract and that the Insurance Company was

¶ [1] entitled to cancel as the Appellant had no

¶ [2] reasonable grounds to support his valuation of the

¶ [3] contents and that he should not merely rely,

¶ [4] however, honestly on his father's say so. The

¶ [5] Respondent insured on the other hand argued that

¶ [6] the basis of belief does not have to be an

¶ [7] objective and reasonable one. In the

¶ [8] circumstances of that particular case, when the

¶ [9] appellant's father told him the value there was a

¶ [10] sufficient basis for his representation. The

¶ [11] insured argued he was under a duty of honesty not

¶ [12] a duty of care. Held, there must be some basis

¶ [13] for a representation of belief before it can be

¶ [14] said to be made in good faith. But the

¶ [15] requirement as stated in section 20 (5) of the

¶ [16] Marine Insurance Act was one only of honesty. The

¶ [17] insured, must

¶ [18] the finding is

¶ [19] as it is not

¶ [20] the truth is of

¶ [21] thing from imputing knowledge of a fact, to

¶ [1] someone who is in truth ignorant of it. That case

¶ [2] also held that the appellant insured was under no

¶ [3] obligation to make further enquires to establish

¶ [4] reasonable grounds for his belief in the accuracy

¶ [5] of his valuation. Mr. Turner places great

¶ [6] emphasis on this case and urges this Court to

¶ [7] follow it. On the other hand, Ms. Pierce for the

¶ [8] Insurance Company relies on several authorities

¶ [9] including **Joel v Law Union and Crown Insurance**

¶ [10] **Company** (1908) 2 KB at page 863 and **Bates v Hewitt**

¶ [11] (1867) LR2 QB at page 595 and **Lee v British Law**

¶ [12] **Insurance Company Ltd** CA April 1972, 2 Lloyd's

¶ [13] Rep. At page 49. Those cases outline the

¶ [14] principles as I believe agreed between the parties

¶ [15] and as outlined in this judgment. The question is whether the plaintiff is guilty of answering the questions truthfully, is guilty
1 of misrepresentation and or non-disclosure. In 2 the case of **Brownlie v Campbell**, 5 App Cas. at 3 page 925 and in particular at page 954 it was 4 said: 5 6 "In policies of insurance, 7 whether marine life or life 8 insurance there is an 9 understanding that the contract 10 is uberrima fides. That if you 11 know any circumstance at all that 12 may influence the underwriter's 13 opinion as to the risk he is 14 incurring and consequently as to 15 whether he will take it or what 16 premium he will charge if he does 17 take it, you will state what you 18 know. There is an obligation 19 there to disclose what you know 20 and the concealment of a material 21 circumstance known to you, 22 whether you thought it material 23 or not, avoids the policy." 24 25 She further relies on the case of **Bates v Hewitt** 366-1862QB 595 27 60 1 CJ 2 ockbutat 26 (187) LR 5 per 7: C page 28
``` It is also well established law, that it is immaterial whether the omission to communicate a material fact arises from intention, or indifference, or a mistake, or from it not being present to the mind of the assured that the fact was one which it was material to make known''. The case of Joel v Law Union and Crown Insurance Company [1908] 2 KB 863, CA per Fletcher Moulton LJ at page 883-884: There is, therefore, something more than an obligation to treat the insurer honestly and frankly, and freely to tell him what the applicant thinks it is material he should know. That duty, no doubt, must be performed, but it does not suffice that the applicant should bona fide have performed it to the best of his understanding. 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a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; 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a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas d, if lurnenhat he h fallen so it; a + by to the that: he has e shona nable textent do it nld have i reas
representing the reasonable man would think, hold that it was material, he has failed in his duty and the policy is avoided. This further duty is analogous to a duty to do an act which you undertake with reasonable care and skill, a failure to do which amounts to negligence, which is not atoned for by any amount of honesty or good intention. The disclosure must be of all you ought to have realized to be material, not of that only which you did in fact realize to be so". This Court now has to decide: (a) Did the plaintiff fail to disclose facts about his health on the questionnaire? (b) Was the questionnaire so ambiguous that the plaintiff could have been misled in answering the question? (c) Were the conditions that the plaintiff was diagnosed with, within the meaning of the questionnaire. [Question section B (question number 1 in part A and question number 2 in part B)] material and how? (d) Finally, was the Insurance Company induced by that misrepresentation and non-disclosure?
The final question is perhaps the easiest to answer. There is evidence in this case that the Insurance Company was, in fact, induced by the information on the questionnaire to enter into this contract. The information given by the plaintiff was clearly representative of his health and therefore, representative of the risks, the Insurance Company was willing to assume on his behalf. The thyroid condition being excluded by the insurance company, they were willing on the basis that he was a condition free (healthy) man to insure him. Where those conditions material? As already stated, in all the authorities including those of the Plaintiff's, the test of materiality is whether a prudent insurer might be induced in the circumstances of the case to take the risk if he had known of the false statement. An expert was called to give evidence as to the
The materiality of these conditions, although, to my mind Mr. Scholefield's evidence alone would have sufficed. The evidence is clear that the conditions diagnosed were material to the risk taken. Even the Plaintiff's own witness, Dr. Last, gave evidence that an individual with a heart murmur would be a higher risk than someone who did not have a murmur. Did Mr. Zeller fail to disclose his health on the questionnaire and does that amount to non-disclosure and/or misrepresentation if he believed that he was a man of good health? It is common ground that Mr. Zeller had a heart murmur and high cholesterol. Only on two occasions did he have elevated blood pressure and this Court made it quite clear during the course of the trial, the question of elevated blood pressure was not considered in Section A of the Health Questionnaire, one of the questions at issue deals

¶ [1] with specific illnesses or conditions and the

¶ [2] Plaintiff honestly answered the question whether

¶ [3] he had thyroid problem in the positive. Section B

¶ [4] reads: "In addition to the conditions listed in

¶ [5] section A, to the best of your knowledge and

¶ [6] belief, within the past 5 years has any person

¶ [7] named in this application had a physical

¶ [8] examination to which the Plaintiff answered

¶ [9] "Yes". 10.

¶ [11] The next question was:

¶ [12] "(2) excluding physical

¶ [13] examination consulted a

¶ [14] physician, health care provider

¶ [15] either individual or facility for

¶ [16] medical or surgical treatment,

¶ [17] advice or screening to any

¶ [18] conditions not listed in section

¶ [19] A." 20.

¶ [21] Anc quests:

¶ [22] "(C). had any departure literature

¶ [23] good health, not previously

¶ [24] mentioned in any of the above

¶ [25] questions for which treatment or
The evidence is that the Plaintiff had a heart murmur and that he had high cholesterol over a long period of time. The Plaintiff argues that he only went to the doctor once a year for a physical examination and that he believed he was in good health as his cholesterol was only slightly elevated. Therefore, when he answered 'No' to the questions B and C, he answered honestly as to the best of his knowledge and belief that he was in excellent health. Mr. Turner relies, as I stated previously, on the case of *Economides v Commercial Union Assurance Co. plc* to support his contention, that honesty is the only criteria. That case can be distinguished from the facts of this case. In the where an application for the insurance of contents, no one suggested that in those initial
1 years he failed to represent the full replacement 2 value of the contents. 3 4 In that case the value of the goods had been 5 honestly assessed by the parties involved 6 including the father of the insured at $16,000 and 7 the Court held that there was no requirement to 8 enquire further into the facts provided that he 9 did not willfully shut his eyes to the truth. The 10 only obligation was that of honesty and there was 11 no requirement to enquire further. 12 13 The distinguishing feature in this case is that 14 the question asked, is whether there is any 15 departure from good health, not previously 16 mentioned in any of the above questions for which 17 tre advisor may 18 Theion is biguic've beht 19 Plaintiff is an educated American citizen who was

¶ [1] diagnosed with a heart murmur and a high

¶ [2] cholesterol condition. He was asked to exercise

¶ [3] and diet for the cholesterol condition. He was

¶ [4] given advice by the doctor. The Plaintiff alleges

¶ [5] that he was diagnosed with a heart murmur but he

¶ [6] honestly believed that he was of good health and

¶ [7] that the heart murmur would not be of great

¶ [8] significance in his fitness. This is not a

¶ [9] question of the accuracy of a quantum or the

¶ [10] accuracy of an opinion. This is a straight

¶ [11] question as to whether there has been a departure

¶ [12] from good health or assessment of conditions not

¶ [13] previously mentioned in section A. Mr. Turner

¶ [14] takes the point that it is only if the insured had

¶ [15] gone for anything other than a physical

¶ [16] examination and something was discovered should he

¶ [17] have answers to the question due to Mr. Turner, that makes the question an

¶ [18] unrealistic proposition. If, for example, one had

¶ [1] gone for a physical examination and had discovered

¶ [2] that one had some communicable disease and that

¶ [3] particular disease was not mentioned in section A,

¶ [4] is it then to be said that that should not have

¶ [5] been disclosed by the Plaintiff. With respect I

¶ [6] cannot agree. If the Plaintiff when undergoing a

¶ [7] physical examination had been discovered with

¶ [8] having a heart murmur, then I believe that is

¶ [9] covered under section B. However, Mr. Turner

¶ [10] submits that if it was material then a specific

¶ [11] question would have been asked under section A,

¶ [12] that too is unrealistic. Not every questionnaire

¶ [13] can be tailored to meet the individual's needs.

¶ [14] So the question must remain now for me to decide

¶ [15] whether, when the Plaintiff answered "No" to

¶ [16] these two questions in circumstances where he had

¶ [17] been informed that he had a heart murmur,

¶ [18] had been informed that he had a heart murmur,

¶ [19] had been informed that he had a heart murmur, 36

¶ [1] Could it have been his honest belief that he did

¶ [2] not have a condition that made him not in the best

¶ [3] of health or could he honestly have stated that he

¶ [4] did not have a condition on which he did not seek

¶ [5] advice. Realistically, after the Plaintiff was

¶ [6] told he had a heart murmur, he must have always

¶ [7] been aware of the fact that he would need special

¶ [8] attention if he was to have surgery on any part of

¶ [9] his body as he had already been told that if he

¶ [10] had a dental condition, he would have to take an

¶ [11] antibiotic because of his heart murmur. It is

¶ [12] common knowledge that not everybody in the world

¶ [13] has a heart murmur and that having a heart murmur

¶ [14] must be a departure from the norm. Does therefore

¶ [15] section B asks for that sort of information

¶ [16] unambiguously, I hold that section B subsection

¶ [17] (a)(c) does in fact bear on the mind

¶ [18] and to come up with any knowledge that he/she

¶ [1] believes may affect the insured taking the risk of

¶ [2] insurance. One must remember that the Plaintiff

¶ [3] in this case was already advised that Health

¶ [4] Insurance is compulsory and he had placed great

¶ [5] emphasis on needing health insurance when he came

¶ [6] to the Island. He must, in my view, have been

¶ [7] alerted to the need for a completely honest

¶ [8] declaration. The heart murmur and high

¶ [9] cholesterol independently can lead to

¶ [10] complications and it is not difficult to come to

¶ [11] the conclusion that an insurance company would

¶ [12] want to know about these unusual conditions in a

¶ [13] man. The fact that the Plaintiff believed that

¶ [14] his condition did not require any great medical

¶ [15] attention is not the question. The authorities

¶ [16] are clear. In order to exonerate the Plaintiff

¶ [17] have you ever been in good health. The question 18.

¶ [1] is have you ever consulted a doctor for any

¶ [2] condition or sought advice on any condition and I

¶ [3] find it difficult to hold that a man who has been

¶ [4] diagnosed with a heart murmur would not have

¶ [5] consulted a doctor as to the consequences of that.

¶ [6] The evidence is clear on the high cholesterol that

¶ [7] he, in fact was given advice and it was suggested

¶ [8] that he take medication for cholesterol. The

¶ [9] obligation to disclose must depend on the

¶ [10] knowledge that the Plaintiff possessed and I hold

¶ [11] that the questions are unambiguous and that the

¶ [12] Plaintiff is guilty of non-disclosure in his

¶ [13] responses. I therefore hold for the Defendant and

¶ [14] declare that the policy of insurance is avoidable

¶ [15] for non-disclosure. 16.

¶ [17] I order return of the Plairor med

¶ [18] thatiff f cal in paymeie

¶ [19] and interest in the net sum. 39

¶ [1] Costs to the Defendant to be agreed or taxed. 3.

¶ [4] Dated this 7 th day of March, 2005 6

¶ [7] Judge of the Grand Court ```html 1 2 3 4 5 6 7 Costs to the Defendant to be agreed or taxed. Dated this 7 th day of March, 2005 Judge of the Grand Court ``` ```latex \documentclass{article} \usepackage{amsmath} \section{Costs to the Defendant to be agreed or taxed.} \section{Dated this 7 th day of March, 2005} \section{Judge of the Grand Court}