Colina Insurance Ltd v Enos Gardiner
| Jurisdiction | Bahamas |
| Judge | Madam Justice Crane-Scott |
| Judgment Date | 04 April 2019 |
| Neutral Citation | BS 2019 CA 80 |
| Docket Number | SCCivApp & CAIS No. 117 of 2015 |
| Date | 04 April 2019 |
| Court | Court of Appeal (Bahamas) |
COMMONWEALTH OF THE BAHAMAS
IN THE COURT OF APPEAL
The Honourable Madam Justice Crane-Scott JA
The Hon Mr. Justice Jones, JA
The Hon Mr. Justice Evans, JA
SCCivApp & CAIS No. 117 of 2015
Mr. Ashley Williams with Mr. E. Terry North, for the Appellant
Mr. Raphael Moxey for the Respondent
Alan Bate v. Aviva Insce UK [2014] EWCA Civ 334; mentioned Ares v. Venner et al [1970] S.C.R 608; considered Assicurazioni Generali SpA v. Arab Insce Group (BSC) [2003] 2 CLC 242; considered Bahamasair Holdings Ltd v. Messier Dowty Inc [2018] UKPC 25; mentioned Bates v. Hewitt (1867) 2 Q.B. 595; mentioned Brit UW Limited v. F & B Trenchless Solutions [2015] EWHC 2237; mentioned Carter v. Boehm (1799) 3 Burr. 1905; considered Charlesworth v Relay Roads Limited (in liquidation) and others 1999 4 All ER 397 considered Charnock and others v. Rowan and others [2012] EWCA Civ 2; considered Colco Electric Co. v. Gold Circle Co. [2003] BHS J. No. 53; considered Condogianis v. Guardian Assurance Co Ltd [1938] 2 AC 125; considered Decoram Investments Ltd v. Atkin (The Elena G) [2001] 2 Lloyd's Rep. 378; mentioned H and anor v. Schering Chemicals Limited and anor [1983] 1 All ER 849; considered Joel v. Law Union and Crown Insurance [1908] 2 K.B. 863; considered Lee v. British Law Ins. Co. (1972) 2 Lloyd's Rep. 49; mentioned Marc Rich v. Portman [1996] 1 Lloyd's Rep. 430, 442; mentioned Mears Limited v. Shoreline Housing Partnership Limited [2013] EWHC 27; considered Pan Atlantic Ins. Co. Ltd v. Pine Top Ins. Co [1995] A.C. 501; considered PCW Syndicates v. PCW Reinsurers [1996] 1 Lloyd's Rep. 241; mentioned Setak Computer Services Corporation v. Burroughs Business Machines Ltd. Et al 15 O. R. (2) 750; considered St. Paul Fire & Marine Ins. Co. v. McConnell Dowell Constructors [1995] 2 Lloyd's Rep. 116; considered Sunley v. Gowland White (Surveyors & Estate Agents) Limited [2003] EWCA Civ 240; mentioned Yeo Ing King v. Melawangi Sdn Bhd Malaysia Civil Appeal No. B-02(W)-160-01/2016; mentioned
Civil Appeal — contract of life insurance — uberrima fides — utmost good faith — death of policyholder within contestability period of policy — refusal by insurer to pay sum assured under the life policy — non-disclosure of material facts — incontestability clause — whether insurer required to plead inducement — whether insurer failed to establish its case — Supreme Court Practice Direction No 2 (1974–1978) — Evidential status of agreed trial bundles — Effect of failure to object during trial to admissibility of the contents of documents in agreed bundle — Hearsay evidence — Documentary hearsay — Exception to hearsay rule — Admission of policyholder's medical record as proof of facts stated therein — Primary and secondary evidence of contents of documents — Sections 37, 38, 39, 41, 43, 60 of Evidence Act Chapter 65 — Application to amend Defence following close of trial
On 25 th July 2011, Mrs. Monique Gardiner applied for a life insurance policy with the appellant insurer with a face value of $150,000.00. She completed the company's proposal form and subsequently attended before the appellant's paramedical examiner and answered, all in the negative, specific questions designed to elicit information pertaining to her medical history. The appellant issued the policy on 8 th December, 2011, however, Mrs. Gardiner died on 18 th November, 2012, approximately eleven (11) months afterwards. Her husband, now Mr. Gardiner, was the named beneficiary under the policy. He submitted a claim under the policy for payment of the sum assured. As the policyholder's death occurred within the two-year contestability period stipulated in the policy, the appellant commenced its investigations. Mrs. Gardiner's medical records were obtained from the Department of Public Health. Following its investigations, the appellant denied Mr. Gardiner's claim on the basis that a medical record (the DPH Summary) summarizing the attending physicians' notes of her two visits to the Flamingo Clinic in 2007 and 2009. The DPH Summary revealed that Mrs. Gardiner was a known hypertensive for two years prior to her 2007 visit and had been treated for frequent headaches and was not on medication. The doctor who treated her in 2007 also assessed her as having uncontrolled hypertension and prescribed blood pressure medication and recommended diet and exercise. On Mrs. Gardiner's second visit to the Clinic in 2009, she complained of headache and was once again found to have had elevated blood pressure and to have weighed-in at 254 pounds.
Following the insurer's denial of his claim, Mr. Gardiner, now the respondent, sued for breach of contract claiming payment of the face value of the policy. In the company's Defence the claim was denied on the basis of non-disclosure of material facts. Following a trial, the judge awarded the respondent the sum of $150,000.00, being the face-value of the policy, with costs to be taxed if not agreed.
In his written judgment, the judge held, inter alia, that the insurer had failed by “proper evidence” to establish its Defence of material non-disclosure; that it had not called witnesses to give direct evidence of Mrs. Gardiner's pre-existing condition and further, that her medical record compiled in the DPH Summary was hearsay and inadmissible. The appellant appealed on numerous grounds.
Appeal allowed. Decision of the judge is set aside. Judgment is entered for the appellant on its Defence. Costs of the appeal and in the court below are awarded to the appellant to be taxed if not agreed.
It seems to us that the inclusion of a document in an agreed trial bundle in accordance with Supreme Court Practice Direction No. 2 means that it is admitted in evidence before the judge by agreement, without the party wishing to rely on it having to call a witness to formally produce it or to authenticate it. That said, it is obvious that while the document is undeniably in evidence by consent, its relevance and significance to the issues-in-dispute will usually only become evident when witnesses who are called to testify at the trial are referred to the document and give secondary evidence about its contents.
Sections 41 and 43(e) respectively of the Evidence Act, permit secondary evidence of a document to be given, inter alia, through oral accounts of the contents of a document given by a witness who has seen the document.
The fact that a specific document relied on by one party is contained in an agreed trial bundle, however, does not, prevent the other party from making a formal objection at the start of the trial to its contents being used or referred to witnesses in the course of the trial. However, advance notice of any objection should be given to the party wishing to rely on such a document so that the party relying on it will be alerted in advance of the trial of the necessity to call the maker of the document to authenticate it and give direct evidence as to its contents. However, if (as occurred in the court below) no such objection is taken before the commencement of the trial, and a specific document in the agreed bundle is used and oral testimony given (without objection) by witnesses who have seen it, the contents of the document are undeniably proved by secondary evidence as provided in sections 41 and 43(e) of the Act.
In the circumstances of this particular trial in which the contents of the DPH Summary and the other documents in the agreed bundle were utilized and referred to (without objection) during the testimony of the various witnesses, it was not only unreasonable, but unfair and plainly wrong for the learned judge to uphold Mr. Moxey's objection made in his Closing Address that the DPH Summary was inadmissible hearsay on the basis that the author of the Summary and the attending doctors at the Flamingo Clinic who treated Mrs. Gardiner and made the medical diagnoses outlined therein were not called to testify.
As the DPH Summary, in particular, was put to and commented on in the direct evidence of the various witnesses, the trial judge was obliged to advert to it and to consider it for its relevance and its full import and effect and give it such weight as in the light of any other evidence and any cross-examination as appeared to him to be proper.
Quite apart from the fact that the DPH Summary was admitted in evidence by consent, it was also a “record” within the meaning of section 60 of the Evidence Act and was before the judge as prima facie proof of the facts stated therein. Furthermore, witnesses for both parties had seen it and given direct evidence about its contents at the trial. The judge was clearly wrong to have treated it as hearsay and to have ignored its contents on the basis that neither Dr. McMillan nor any of the attending doctors had been called to give direct evidence.
The judge's conclusion at paragraphs 53 and 54 of his Judgment that the DPH Summary was inadmissible hearsay and that Colina had not established by “proper evidence” the material nondisclosures pleaded in its Defence was plainly wrong.
Even though the fact of inducement had not been expressly pleaded in its Defence as the judge thought it should have been, there was more than sufficient evidence of inducement before him from Colina's underwriter, Angela Taylor, from which such a finding could be made. What is more, the very nature of the representations/non-disclosures which Mrs Gardiner made at the time she applied for coverage, were more than sufficient facts from which inducement could also have been inferred. Regrettably, the learned judge failed to have regard to the relevant principles regarding how inducement may be established and, in particular, failed to examine the evidence which Colina had adduced before refusing the application to amend. His decision on inducement was clearly...
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