The High Court has refused an attempt by two insurers to have Fergus Duffy’s long-running disability benefit claim dismissed for delay.
Mr Duffy worked for FÁS from 1978 and was covered by a group permanent health insurance policy. He claimed he was unable to work between May 1995 and August 1998 because of bilateral tinnitus and deafness caused by occupational noise exposure.
He applied for disability benefit in October 1995. The insurer rejected the claim in February 1996 on the basis that he did not meet the policy definition of disability. An appeal was effectively rejected later that year, while a complaint to the Insurance Ombudsman failed because the amount claimed was outside her jurisdiction.
Proceedings were not issued until November 1999 and moved slowly thereafter. Ms Justice Laffoy found the delay in prosecuting the case was both inordinate and inexcusable. More than 12 years had passed between rejection of the insurance claim and the first attempt to secure a hearing date.
However, that did not automatically end the case. The court also had to decide whether the balance of justice favoured dismissal.
The insurers argued that the delay had damaged their ability to defend the action because key medical witnesses had died and other experts no longer had contemporaneous notes. The court rejected the argument that this prejudice was attributable to Mr Duffy’s delay. One key insurer-appointed doctor had already died before the proceedings were issued, while the judge found the insurers could themselves have taken earlier steps to preserve or obtain replacement medical evidence.
The court also noted delays on the defence side. More significantly, the insurers had sought discovery, engaged with the case and in January 2009 asked that an imminent trial date be adjourned and relisted. Ms Justice Laffoy found aspects of that conduct amounted to acquiescence in the proceedings continuing.
The application to dismiss Mr Duffy’s claim was therefore refused. Irish Life Assurance Plc was also substituted for the original first defendant following an earlier transfer of insurance liabilities.