Wati v BSP (Fiji) Life Ltd [2013] FJHC 130; HBC165.2012 (21 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 165 of 2012.

BETWEEN:

RAMILA WATI of Vunimono, Nausori.
PLAINTIFF

AND:

BSP LIFE (FIJI) LIMITED
4 Thompson Street, Dominion House Suva.
DEFENDANT

BEFORE : Justice Deepthi Amaratunga

COUNSEL : Plaintiff in person

Mr. Tuitogo T. for the Defendant

Date of Hearing : 28th February, 2013

Date of Decision : 21st March, 2013

DECISION

1. INTRODUCTION
   

1. The Plaintiff filed this action seeking a payment of money from the Defendant which was the insurer of her late husband's life insurance in terms of said policy and also for negligence. The Defendant refused to pay the sum insured on material non disclosure and the Plaintiff is also seeking general damages for negligence of the Defendant. The defendant in the statement of defence denied all the allegations and further stated that insured was diagnosed with lschemic Heart Disease from 2004 and had received treatment for hypertension and diabetics from 2005 and non disclosure and or misrepresentation of the said condition in the life insurance policy was the reason for the decline of the claim for the sum insured. The Defendant also filed the summons for strike out in terms of Order 18 rule 18 (1) (a) and (d).
   

2. LAW AND ANALYSIS
   

2. Order 18 rule 18 of the High Court Rules of 1988 states as follows
   

'18(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that anything in any pleading or in the indorsement, on the ground that

(a) It discloses no reasonable cause of action or defence, as the case may be; or
(b) ...
(c) ...
(d) It is otherwise an abuse of the process of the court; and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.'

3. The Plaintiff's action is based on the Defendant's decline to pay the sum insured of her husband and also for negligence. The Defendant admits the life insurance policy issued to the late husband of the Plaintiff, but states that at the time of the said policy was issued the deceased was suffering from Heart Disease and also from Diabetics which was not revealed.
   
4. White Book 1988 p 315 18/19/7 states as follows
   

'No reasonable cause of action or defence-principles applicable

"There is some difficulty in affixing a precise meaning to this term " In point of law ... every cause of action is a reasonable one" ( per Chitty J. Republic of Peru v Peruvian Guam Co [1887] UKLawRpCh 186; (1887) 36 Ch.D. 489, p 495) A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond Jackson v British Medical Association [1970] 1 W.L.R 688; [1970] 1 All ER 1094, CA). But the practice is clear. So long as the statement of claim or the particulars (Davey v Bentink [1892] UKLawRpKQB 216; [1893] 1 Q.B. 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out (More v Lawson (1915) 31 T.L.R 418, C.A: Welock v Moloney [1965] 1 W.L.R 1238;[1965]2 All ER 871, C.A.); nor is the fact that the Statute of Frauds (1904) 91 L.T 340, C.A.). In such a case application may be made under O33, r3 for the trial or preliminary issue ......

5. The Plaintiff's claim is based on the refusal of the Defendant to pay the sum insured under the life insurance policy of her late husband. The Defendant admits the life insurance policy, but state the late husband did not disclose the material facts in the application for the life insurance policy. The Defendant also state what those material facts are and this is contained in the paragraph 9 of the statement of defence which state as follows
   

"(a). the insured was diagnose with Ischemic Heart Disease on 15 November, 2004 and had since 2005 received treatment fro hypertension, diabetes and ischemic heart disease.

(b) the insured misrepresentated the state of this health in the proposal sent to the Defendant.

(c) the insured insurance claim was declined on the ground of misrepresentation and material non-disclosure.'"

6. In reply to the defence the Plaintiff stated
   

'5. In reply to paragraph 9, The Plaintiff say that on 2 November 2011, Sr, Medical Officer Wainibokasi Hospital, wrote to manager colonial life clearly stating and clarifying that

......Imam Ali was admitted for heat attack on 5.11.2007 to 10.11.2007 at Wainibokasi Hospital and developed congestive heart failure as a result of his heart attack.......

Therefore allegations and painting of wrong picture by the Defendant is denied.

The Plaintiff will tender evidence in court during trail (sic)/hearing.'

7. So the contention of the Plaintiff is clear and she categorically denies any misrepresentation by her late husband and also state that she will prove her case at the trial. In terms of the provisions contained the reasonable cause of action has to be determined on the pleadings and the Defendant insists that she be granted an opportunity to prove her case and further states in paragraph 10 in her reply to the defence
   

'... I say that the Defendant should come with clean hand and operate their insurance business in transparent and fair manner. Instead of operating in devious and scandalous manner.'

8. These are matters which cannot be decided summarily on the pleadings alone since the Plaintiff is alleging certain unfair treatment as well. So, on the materials available to me on the pleadings I cannot consider that the Plaintiff does not have a reasonable cause of action.
   
9. The Defendant's summons also alleges abuse of process and for that I needed to consider the affidavit evidence. The Plaintiff in her affidavit in opposition had annexed medical certificates from Dr Jack Koraai and contradicts the medical certificate filed by the Defendant purported to be signed by Dr. Jack Koraai (which in fact was signed by a person on behalf of Dr. Jack Karaai). In the medical certificate annexed to the affidavit in opposition Dr. Jack Koraai stated that he had treated the husband of the Plaintiff prior to the death, but was not explicit from which date. The insurance application was made on 22nd November, 2006.
   
10. The Plaintiff do not state anything about the medical certificate of Dr. Bakani marked MC5 to the affidavit in support, which indicate a history of hypertension and also a fracture and diabetis. These are evidence which needed to be tested at a trail. The strength of the Plaintiff's case is not a reason for strike out, if it reveals a reasonable cause of action. The important date for consideration is the time of the application for the life insurance policy and according to the statement of defence the deceased was suffering from illnesses in 2004 and 2005. The life insurance policy was obtained in 2006 without a medical report of the deceased and if such report was obtained it would have revealed the condition of the deceased, without a dispute, but unfortunately no such medical report is available to me. The present action cannot be considered an abuse of process since the materials alleged by the parties are contradictory and needs to be tested at the trial. The Defendant in the statement of defence state the deceased was suffering from sicknesses from 2004 and the policy was executed in 2006. The material time is the time of the application for life insurance was made and the action cannot be considered an abuse of process since the said facts needed to be elicited in trial since contradictory evidence is presented by the parties and facts are in dispute in this action.
    

100. FINAL ORDERS
     
     1. The summons for strike out is dismissed.
     2. The Plaintiff is granted $200 as cost assessed summarily.
     100. The matter to take normal cause.
          

Dated at Suva this 21st day of March, 2013.

.................................................
Justice Deepthi Amaratunga
High Court, Suva