The High Court has struck out a carpenter’s proceedings against Aviva Direct Ireland Limited, finding that he had no reasonable cause of action against the insurer and that an amendment alleging negligence would not save the claim.
Yun Bing Hu was injured to his thumb while working for his employer, Duleek Formwork Limited, at a building site in Spencer Dock, Dublin, on 17 August 2009. He believed the injury resulted from his employer’s negligence. Duleek had insurance intended to cover employer negligence, but the policy required payment of a €1,000 excess as a condition precedent to cover. That amount was not paid, and Aviva declined cover.
Hu had already obtained judgment in default of appearance against Duleek by a High Court order made on 28 September 2011. Damages had not yet been assessed. After learning Aviva was refusing cover, he added the insurer as a defendant in March 2012 and amended and served the personal injury summons in May.
Aviva applied to strike out the claim, arguing that the pleadings disclosed no reasonable cause of action and that the case was bound to fail. Hu did not dispute that the excess had been requested and remained unpaid. His solicitor said Hu had not been told the reason for the refusal until Aviva filed evidence for its application, and that he would still pay the excess himself. The solicitor argued that earlier disclosure might have allowed Hu to press for payment by Duleek or its liquidator, or to pay it himself.
The judge held that Hu had no contractual relationship with Aviva and could not enforce the insurance contract. He ruled that section 62 of the Civil Liability Act 1961 did not provide a remedy because, following the unpaid excess and repudiation, no money was payable to Duleek under the policy. The judge also said the issue of whether Aviva was entitled to repudiate was not live, since the non-payment was undisputed.
Hu also sought to amend the case to allege that Aviva owed him a duty of care to disclose the policy breach. The judge said the insurer was not sufficiently close to a potential claimant to owe that duty, and concluded the proposed amendment would not provide a viable claim. Although he expressed sympathy for Hu and described the result as unfair, he struck out the proceedings against Aviva under the court’s inherent jurisdiction, satisfied that no amendment could save them. The order concerned Aviva; the judgment records that damages against Duleek remained to be assessed.