The High Court has found for Friends First Life Assurance Company Limited on the liability issue in a dispute over its refusal of Matthew Kirby’s income protection claim. The court ruled that Mr Kirby had failed to disclose material information about recent symptoms, medical consultations and tests when he applied to join a group insurance scheme in 2008.
Ms Justice Ní Raifeartaigh’s judgment addresses liability only. The court postponed the trial’s quantum phase after expert reports on that issue were provided on the first day of the hearing. The judgment does not determine any amount payable or award damages.
Mr Kirby, a Bus Éireann driver, applied to join the scheme after returning to work following medical investigations in 2008. His application disclosed a sinus problem, an ENT consultation, scans and a nasal polyp, but left blank a question asking for the names of other medical practitioners he had consulted. The court heard that he had also experienced symptoms including itching, dizziness, difficulty concentrating and visual problems, and had attended other doctors and hospital investigations.
Friends First refused his claim in February 2012, citing the undisclosed attendances and tests. It also ended his scheme membership and said premiums paid since he joined would be returned. Mr Kirby sought, among other reliefs, payment under the policy and damages. Friends First argued that the omissions breached his disclosure obligations under the policy.
The judge found that the undisclosed information would reasonably have affected a prudent insurer’s decision. Friends First’s witnesses said the application would have been postponed, with the position reviewed about a year later. The judge accepted that approach as reasonable in light of the recent symptoms and extensive investigations.
The court also found that Mr Kirby knew about the symptoms, doctors and tests, and had not simply forgotten them. His evidence was that he had asked someone at the scheme’s broker, JLT, whether to include the information and was told it was unnecessary. The judge considered that conversation evidence that the omission resulted from a decision, rather than forgetfulness. She said the broker appeared to have been acting as Mr Kirby’s agent.
The judge said her conclusion did not depend on finding that Mr Kirby was dishonest. She considered that he may have believed, based on the broker conversation, that the information did not need to be included. But the court held that an absence of dishonesty did not remove the insurer’s right to repudiate where material information had not been disclosed.
The judgment rejected arguments that Friends First was legally barred from refusing the claim because it had not spotted discrepancies in the forms or had taken time to issue its refusal. The court found for Friends First on liability; the separate quantum issues were left for later.