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.”
It was not enough that the plaintiff had received advice for symptoms that turned out be angina unless the insurers could read “condition” 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 injury”. "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.