ACE Insurance SA-NV v SURENDRANATH SEECHURN [CA (Civil), 06/02/2002]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Thorpe,Lord Justice Keene |
| Judgment Date | 06 February 2002 |
| Neutral Citation | [2002] EWCA Civ 67 |
| Docket Number | Case No: B1/2001/0372 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 2002 |
[2002] EWCA Civ 67
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
His Hon. Judge Previte
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Thorpe and
Lord Justice Keene
Case No: B1/2001/0372
Jeremy Stuart-Smith Q.C. (instructed by Messrs Davies Lavery for the Appellant)
Stephen Shaw (instructed by Messrs Ashley & Co. for the Respondent)
At the trial of two preliminary issues, His Hon. Judge Previte Q.C. sitting in the Central London County Court found on 30 th January 2001 that:
i) the date of accrual of the cause of action for payment under two policies of disability insurance was 12 months after the disabling accident which befell the claimant on 16 th September 1988; and
ii) although proceedings were only brought over 10 years later on 7 th October 1998, the action had not become statute barred on 16 th September 1995 because the defendant insurers were estopped from relying on Section 5 of the Limitation Act 1980.
The first finding is now accepted, but the insurers appeal with the permission of Robert Walker L.J. against the second ruling.
Mr Seechurn came to this country from Mauritius in 1975 when he was about 30 years old and found work at the Post Office where he remained. On 16 th September 1988 he was a passenger on the upper desk of a London Transport bus and, having rung the bell, started to descend down the stairs. The bus stopped sharply causing him to lose his balance and roll downstairs hitting his head on the steps as he fell. A passenger saved him from falling into the roadway but he suffered severe injuries to his neck, to his upper and lower back and was admitted to hospital for treatment. He alleges that his condition had grown progressively worse over the years so that he was left in constant pain, severely handicapped in his mobility, totally incapacitated from work and now dependent on Social Security and Disability Benefit.
Fortunately Mr Seechurn had accepted invitations extended to holders of an American Express Card to take out policies of insurance with the defendant company, then known as Cigna Insurance Company of Europe s.a.-n.v. The first policy was taken out on 16 th March 1988 under the American Express Card Member Disability Compensation Plan. The benefit of that policy was a total sum of £250,000 in the event of his suffering permanent total disablement but the policy also required the insurer to pay a partial benefit as a proportion of the sum insured relative to the degree of permanent disability. These benefits were paid in the event of the insured suffering "bodily injury" meaning "injury which is caused by accidental means and which within 12 calendar months from the date of the accident results in the insured person's permanent disablement". "Permanent total disablement" was defined to mean "disablement which, having lasted for at least 12 months, will in all probability entirely prevent the insured person from engaging in his/her usual occupation or any other occupation for which he/she is fitted by reason of education, training or experience for the remainder of his/her life".
The second policy was taken out on 7 th June 1988 under the American Express Card Member Triple Security Plan. This insured the card member in the sum of £150,000 in the event of his suffering permanent total disablement but provided for a payment of £1,500 per month for temporary total disablement payable for 12 months. There were slightly different definitions of "bodily injury" and "permanent total disablement" but nothing turns upon those differences.
In his witness statement, dealing with the history of his claim from the date of the accident to 1989 the claimant states that he did not at first know how serious his injuries were and certainly did not then believe that there was a risk that he would be permanently disabled. He says that he submitted the report form for a claim for temporary total disablement under the Triple Security Plan on 17 th October 1998, but this must be a typographical error for 1989. It is common ground that the insurers paid him the insured sums of £1,500 per month for 12 months and he has by common consent received £18,000 benefit under that plan.
On 3 rd May 1990 Mr Seechurn submitted a claim under the Disablement Compensation Plan, supported by his consultant orthopaedic surgeon Mr Thakkar who certified that:—
"In his present state he cannot work and I do not expect him to resume work in the future."
In August 1990 the claimant was seen by the defendant's consultant orthopaedic surgeon, Mr Cobb, and his opinion was that:—
"There are several inconsistencies between his symptoms and physical signs suggesting that he is not a reliable witness. … In my opinion, therefore, although undoubtedly this man suffered a significant injury to his back and neck which is very likely to be causing continued symptoms, he may be reluctant to admit improvement and recovery. The diagnosis is of soft tissue injuries only and there is no evidence of significant neurological dysfunction. The natural history of this condition is resolution of symptoms within 1–2 years and recovery of function. … I believe that if he makes the psychological adjustment necessary to want to obtain work and to want to sort his life out, then he will achieve significant recovery of his symptoms and will be suitable for some sort of employment, probably sedentary and clerical."
On 30 th January 1991 the claimant saw Mr Thakkar again. His conclusion was:—
"Electromyographic studies (tests on the muscles to detect abnormalities) were performed in June '89 and a myelogram (assessment of the spinal cord by inserting a dye in the spinal canal) in Nov. '89 failed to reveal significant abnormalities.
When assessed today (30/1/91) it would appear that he is still in a great deal of pain and is unable to move unaided and unsupported. He has numbness and weakness in both upper and lower limbs and is on painkilling medication. These symptoms and signs are extremely difficult to explain and I would certainly recommend a second opinion from a neurologist. In my opinion the accident has probably partially contributed to his present state. Physiotherapy and rehabilitation may improve his clinical state but it is very unlikely that he will ever be normal again. In his present state he cannot be gainfully employed and I do not foresee him returning to a full-time job in the future."
The claimant sought a second orthopaedic opinion and Mr Tiwari reported on 5 th March 1991 that:—
" PROGNOSIS.
1. I feel that this man requires further specialised investigation on the lines of MRI and CT scans to definitely exclude any spinal pathology.
2. He also requires further assessment by a neurosurgeon to exclude any neurological abnormality in view of his bizarre symptoms and signs.
3. In my opinion he is unable to resume his previous or any alternative occupation because of extreme pain …
5. I found him psychologically stable and mentally orientated to time and place …
IN CONCLUSION.
I feel that this man has sustained severe injury to his neck and back resulting in severe pain. He also presents with rather bizarre symptoms and positive neurological deficits which require further investigation. I think that this man's problems will continue in the long term."
Although the insurers had written on 24 th January 1991 that they were unable to make any payment under the Disability Compensation Plan as no evidence had been provided to suggest that the claimant had continuing and permanent injuries, they were prepared to reconsider the matter and on 28 th May 1991 they wrote:—
"Taking into account that all your current symptoms that are not of a permanent nature, we have assessed the degree of permanent disability that can be regarded as due to your accident as being £10,000 and on the assumption this is acceptable to you we attach our form of discharge for your signature and return."
The claimant instructed solicitors, Anthony J. Newton & Co., who, in response to the insurer's letter of 28 th May, sent the insurers copies of the reports from Mr Thakkar and Mr Tiwari, asserted that Mr Seechurn was permanently disabled, unable to engage in any form of employment and consequently entitled to the full amount due and payable under the policy. That elicited this response on 26 th June 1991:—
"From the evidence that has been read by a Chief Medical Officer, we could at this stage increase our offer to 10% which amounts to £20,000.
If this is acceptable to the client, can you please let us know or alternatively can you please let us have full reports from the suggested neurosurgeon and also reports of any MRI and CT scans."
That offer was rejected as unacceptable on 30 th July 1991 when the claimant's solicitors contended that he need not provide any further medical reports and seemed to draw the battle lines with the assertion that:—
"Unless you agree that our client is entitled to payment in full, it appears there is no alternative but for him to institute proceedings for what is rightly due and owing to him."
As I have already set out, those proceedings were not in fact instituted until 7 th October 1998. In the intervening years there were periods both of silence and of correspondence which I will need to analyse in more detail in order to decide whether the judge erred in his conclusion that the course of correspondence and the insurer's conduct gave rise to what Chitty on Contracts describes as a "forbearance in equity" (see paragraph 3–080...
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