Verbatim report from The Times (4.12.98)
Cook v Financial Insurance Co Ltd
Before Lord
Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord
Steyn and Lord Hope of Craighead [Speeches December 3].
A plaintiff who had
symptoms of angina prior to taking out disability insurance but was only
diagnosed as suffering from angina on the day following the commencement date
of the policy was not debarred from claiming under it by an exclusion clause
relating to pre-existing illness.
The House of Lords
by a majority, Lord Browne-Wilkinson and Lord Jauncey dissenting, allowed an
appeal by Jeffrey Harry Cook from the majority decision of the Court of Appeal
(Lord Justice Hobhouse and Lord Justice Hutchison, Lord Justice Evans dissenting)
on April 17, 1997 allowing an appeal by the defendants, Financial lnsurance Co
Ltd, from Judge Boggis, QC, at Birmingham County Court, who had given Mr Cook
judgment for £6,101.85.
Mr Stephen Howd
for Mr Cook; Mr Basil Yoxall for the insurers.
LORD
BROWNE-WILK1NSON, dissenting, said that the question was whether the plaintiff
had been suffering from a "disability resulting from ... any sickness,
disease, condition or injury for which [he] received advice, treatment or
counselling from any registered medical practitioner during the 12 months
preceding the commencement date [of the policy]."
On July 26, 1992
he had collapsed. He had seen his doctor on July 30 and September 4. He had
been suffering from pain and breathlessness. His doctor could not accurately
diagnose his condition: it might have been a viral infection or respiratory
disease or a heart disease. In fact she had advised him to see a cardiologist.
In her covering
letter to the cardiologist she had said: "Obviously with the history I
would like to exclude angina..." All that had happened just before the
commencement date of the policy, on October 15. The cardiologist on October 16
had diagnosed angina.
Although
undiagnosed at the time, the plaintiff had been suffering from a medical
condition that was angina and in relation to which he had received advice and
counselling. His Lordship could see no reason why in order to suffer a
disability resulting from a condition the exact nature of that condition had to
be identified. LORD JAUNCEY, agreeing with Lord Browne-Wilkinson, said that the
physical condition that had disabled the plaintiff from work had been the same
condition as that from which he had been suffering since at least September 4.
For that condition he had received treatment, albeit inappropriate, and advice.
LORD LLOYD said
that it was not suggested that the plaintiff had received counselling for
angina prior to October 16. 1992.
Nor, in his
Lordship's view, had he received treatment for angina, since neither Ventolin,
which his doctor had prescribed for the breathlessness, nor a mild antibiotic,
in case he had a viral infection, could possibly be regarded as a treatment for
angina.
Nor had he
received advice for angina. He had received advice in respect of symptoms that
turned out to be those of angina.
If, as his
Lordship thought, treatment for a disease required some knowledge on the part
of the doctor of the disease that she was treating, so advice for a disease must
also require knowledge on the part of the doctor of the disease about which she
was giving advice. A doctor did not give advice within the meaning of the
exclusion clause by saying: "I do not know what is wrong with you: go and
see another doctor.Ó
It was not enough
that the plaintiff had received advice for symptoms that turned out be angina
unless the insurers could read ÒconditionÓ as including symptoms of a
generalised kind that might indicate any number of different diseases or none.
There was no
justification for so reading it, especially in the context of "sickness,
disease ... or injuryÓ. "Condition" in that context meant a medical
condition recognised as such by doctors.
Lord Steyn and
Lord Hope agreed with Lord Lloyd.
Solicitors: M. J. Darby
& Co. Halesowen; Martin Shepherd & Co.