Mundi v Lincoln Assurance Ltd [2005] EWHC 2678 (Ch)

[2005] EWHC 2678 (Ch)

Case No HC04C01514

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/11/2005

Before

MR JUSTICE LINDSAY

Between

NARINDER PAL KAUR MUNDIClaimant

LINCOLN ASSURANCE LIMITEDDefendant

Mr Adam Tolley (instructed by Hodders) for Claimant

Mr Colin West (instructed by Osborne Clarke) for Defendant

Hearing Hearing dates: 24 th October 2005-27 th October 2005 and written further submissions dated 4 th November 2005, 10 th November 2005 and 14 th November 2005

Judgment

Mr Justice Lindsay :

Introduction

[1]In June 1997 Mr Sukhjinder Mundi and his wife Narinder took out a life policy with Lincoln Assurance Ltd at a standard premium rating. In return for £174.14 a month Lincoln obliged itself to pay £100,550 if (amongst other events) either Mr or Mrs Mundi died before the 25th June 2022. For a time premiums were paid but then, after a spell during which premiums were not paid, the Policy was re-instated, again at a standard rating, in January 1999. Mr Mundi died on the 30th November 2001. He was only 42. He died of a heart condition. His consumption of alcohol, the relevance of which will become apparent, had nothing to do with his death. His widow claimed under the Policy as his personal representative but Lincoln, asserting that both the original issue of the Policy and its re-instatement had been procured by material false- or non-disclosure, declined to pay, claiming to avoid the Policy. It sent Mrs Mundi a cheque for the premiums thus far paid, some £9,577. Mrs Mundi refused to accept the cheque and on the 5th May 2004 issued a claim form seeking payment of the £100,550 and interest. That is the claim before me. Lincoln resists that claim but it accepts that, if the Policy is to be avoided, then the onus is upon it to show the falsity or incompleteness of the disclosures, that such defects were material (in the sense I will explain) and that the deficiencies in disclosure in fact induced Lincoln to issue the Policy on the terms (namely at the standard rate) which the Policy embodied. The question before me is thus whether Lincoln is entitled to avoid the Policy?

[2]Mrs Mundi appears by Mr Tolley. Lincoln, which appears by Mr West, has wavered as to the particular grounds relied on in support of avoidance. There were for a time issues as to Mr Mundi’s having been tested for and having suffered from undisclosed diabetes mellitus. The confusion arose because the medical records seemed to suggest that he had suffered from it but ultimately the confusion was cleared up and it was accepted by Lincoln that he had not. Lincoln’s case had for a time relied, inter alia, on non-disclosure as to diabetes but it abandoned that attack at the trial. Two other areas of possibly inadequate disclosure were raised, namely as to the undisclosed existence and abnormality of some liver function tests and hints in the medical records as to Mr Mundi having suffered from some undeclared digestive or abdominal disorder. The latter as I shall explain, without being abandoned certainly faded. Liver function tests did have a continuing rôle. It was not only that they had been made but that they had to some extent been abnormal and should have been disclosed and also that if (as will be dealt with below) Lincoln had asked for a GP’s report or its own nominated doctor’s medical report as to Mr Mundi’s health, the medical notes would have come to light and would have been studied by Lincoln and, if they had been so studied, the liver function tests or the need for them would have contributed to Lincoln’s apprehensions. But these other issues were rather secondary; the undeclared but allegedly excessive alcohol consumption on Mr Mundi’s part became the chief ground relied upon by Lincoln in its attempt to avoid the Policy.

The Witnesses

[3]The parties sensibly jointly instructed a single expert, Dr Martin Harris, a General Practitioner with 24 years’ experience in general medical practice and with massive and relevant qualifications which I shall not set out as he was not required to give oral evidence and because, in the event, his rôle was limited to the putting into chronological order of and the interpreting and explaining of Mr Mundi’s medical notes. As for the other evidence, each of the other 6 witnesses gave both written and oral evidence and I shall deal with such evidence as I come to it.

Materiality: the law

[4]I do not understand either side to dispute or to wish to qualify the passages in MacGillivray on Insurance Law, 10th Edition 2003 paragraphs 17-35, 17-40 and 17-41 where one finds:- “17.35 Criterion of materiality in English law. The common law test for materiality is stated in section 18 (2) of the Marine Insurance Act 1906 which provides that:

“Every circumstance is material which would influence the judgment of a prudent insurer in fixing the premium or determining whether he will take the risk”

. The word “judgment” does not mean “final decision” but simply “formation of an opinion”. Accordingly a fact may be material although, if disclosed, it would not have led the prudent insurer to decline the risk or stipulate an increased premium. It is enough that he would rightly take it into account as a factor in coming to his decision. It has been suggested by Scrutton LJ that the statutory definition should be glossed by adding the words “in that type of insurance” after “prudent insurer”. 17-40 Evidence of materiality. Although it is proper for the Court to formulate legal tests governing the materiality of facts, the question of whether a given fact is or is not material is one of fact to be determined by a jury or the Judge as the trier of fact. The decision rests on the Judge’s own appraisal of the relevance of the disputed fact to the subject matter of the insurance; it is not something which is settled automatically by the current practice or opinion of insurers. 17-41 Thus the materiality of an uncommunicated fact may be so obvious that it is unnecessary to call any expert evidence to establish this point. Scrutton LJ put the matter forcibly in Glicksman –v- Lancashire and General Assurance Co. in the following way:

“[It was argued] that before a Court can find that a fact is material, somebody must give evidence of the materiality. That is entirely contrary to the whole course of insurance litigation; it is so far contrary that it is frequently objected that a party is not entitled to call other people to say what they think is material; that it is a matter for the Court on the nature of the facts. I entirely agree with Roche J that the nature of the facts may be such that you do not need anyone to come and say, “this is material”

. If a ship-owner desiring to insure his ship for the month of January knew that in that month she was heavily damaged in a storm, it would, with deference to Counsel who has suggested the opposite, be ridiculous to call evidence on the materiality of that fact; the fact speaks for itself”. 17-42 Where, however, the Court is unsure of the materiality of a given fact, it is usual to call expert evidence from persons engaged in the insurance business in order to assist the Court in making its decision.

[5]As to the extent of any required disclosure of a material circumstance, I need to bear in mind, as Lord Mansfield so long ago emphasised, that an insurance contract, and thus one based on the principle of the utmost good faith, proceeds:- “Upon confidence that [the assured] does not keep back any circumstance in his knowledge to mislead the underwriter into a belief that the circumstance does not exist.” – see MacGillivray supra at paragraphs 17-4 and 17-5. In this case no expert insurance evidence has been called. Each side had permission to adduce expert evidence in the field of life insurance but neither side exercised that right. Materiality is thus left to me as the trier of fact unaided (nor impeded) by expert evidence on the subject.

Inducement: the law

[6]It is not difficult to postulate cases in which an underwriter for his own reasons chooses not to take into account but to ignore, when deciding whether to accept a risk and at what premium to accept it, facts which the notional prudent underwriter would have taken to be “material”. He may wish to attract a particular client with one policy as, so to speak, a “loss leader” for that client’s general business; he may wish to attract a particular type of business by offering attractive opening terms. He may think that the conventional and prudent assessment of the type of risk concerned is exaggerated. In such and other cases the actual underwriter may not in fact be induced to write a particular policy by a material non-disclosure even where his application forms and his internal training and risk-assessment literature all stress that he will, indeed, rely on what is disclosed to him as being a truthful and full disclosure. Accordingly, an insurer wishing to avoid his contract bears the burden of proving inducement but he may in some circumstances be assisted by the presumption described in St Paul Fire & Marine –v- McConnell [1995] 2 LLR at p116 CA at p. 127 per Evans LJ as follows:- “The existence of such a presumption is recognised in the authorities: see Halsbury’s Law Vol 31 par. 1067 where the law is stated as follows: ‘Inducement cannot be inferred in law from proved materiality, although there may be cases where the materiality is so obvious as to justify an inference of fact that the representee was actually induced, but, even in such exceptional cases, the inference is only a prima facie one and may be rebutted by counter-evidence.’” The authorities cited includes Smith –v- Chadwick (1884) 9 App. Cas. 187 and in my judgment they justify the above statement of the law.”

[7]Thus, whilst the law in some circumstances will presume inducement from materiality, the presumption is neither universal nor irrebuttable.

The relevant periods

[8]I shall need to look in more detail about what is known of Mr Mundi’s drinking and health at various stages of the latter part of his life but, at the outset, it is as well to have in mind three distinct periods, two of which are relevant to questions as to the disclosure which he and his wife made to Lincoln.

[9]He and his wife completed their proposal form for the Policy on the 11th May 1997. The first period with which I shall be concerned in relation to disclosure is therefore the period (“the Pre-Application Disclosure period”) down to and including the 11th May 1997.

[10]Putting on one side for the moment any questions as to the voidability of the Policy, there then followed a period during which, to begin with, the Policy was current and the premiums were paid, a period that ran from the 12th May 1997 to and beyond the 15th December 1998 when, after a spell during which premiums were not paid, Lincoln issued a Lapse Notice in respect of the Policy. This period goes on to the 8th January 1999 when Mr and Mrs Mundi completed a “Declaration of Continued Good Health” with the intention on their part of ensuring that the Policy should be re-instated. I shall call the period from the 12th May 1997 to the 8th January 1999 “the Second Disclosure Period”.

[11]Finally there was a period (“the Last Period”) from 9th January 1999 to the re-instatement of the Policy and going on down to 30th November 2001, when Mr Mundi died of coronary heart failure at the sadly early age of 42. Events in the Last Period are not relevant to disclosure (save to such extent, if any, that they throw light back on to either or both of the Disclosure Periods) but they bear upon the credibility of some of the evidence.

The Lapse Notice

[12]If the effect of the Lapse Notice of the 15th December 1998 was to bring the Policy to an end then the adequacy of disclosure could be tested without one necessarily having to go back into the Pre-Application Disclosure Period and with one perhaps not needing to look earlier than the Second Disclosure Period. So it is useful first to see whether the Lapse Notice worked.

[13]The Policy specified premium due dates of the 25th June 1997 (the commencement date of the Policy) and monthly thereafter. A “Grace Period” was allowed, which, as to premiums falling due within three years after the 25th June 1997, was defined as 31 days from the premium due date. Clause 6B of the Policy provided:- “(i) If the Policyholder does not pay any Premium before the end of its Grace Period and the Surrender Value is less than £250 (or any other amount which the Company may specify) the Policy shall cease and the Company shall pay the Surrender Value to the Policyholder.” I do not understand it to be disputed but that the Policy had a nil Surrender Value as at the date of the issue of the Lapse Notice. The first premium that had not been paid fell due on the 25th October 1998. At the date of the Lapse Notice some £522.42 was owing. More than 31 days had elapsed since the 25th October 1998. The Lapse Notice said:- “We are sorry to tell you that your Policy has now lapsed, because recent premiums have not been paid.” In the circumstances I see no reason why the Policy should not be taken to have ceased not later than 15th December 1998.

[14]However, the Lapse Notice continued:- “Applying for re-instatement could not be easier. Just complete the enclosed form (both sides) and return it to us with the total outstanding premium(s) shown opposite” - a reference to £522.42. That sum was paid and on the 8th January 1999, with a view to having the Policy re-instated, Mr and Mrs Mundi completed a Declaration of Continued Good Health. The Policy was re-instated; a fresh contract was thus made at a standard rate. I shall therefore first look at the disclosure made by the Declaration of Continued Good Health and Mr Mundi’s health and health records during the Second Disclosure Period.

The Disclosure made for the re-instatement

[15]The Declaration of Continued Good Health first specified the policy number of the policy which was being sought to be re-instated. The policy number given was 231-036213-10. That was the policy number of the original Policy. The form continued, raising questions amongst which was:- “Since signing the application for the above numbered Policy have you (b) consulted any medical adviser?” Mr Mundi answered that question “No”. Beneath that in the form Mr Mundi was asked to provide his usual Doctor’s name and address and below that the form stated:- “If you answered Yes to any of the above questions please provide the full details below.” The form continued:- “Please read the notice completely before you sign All material facts – which mean facts that an insurer would regard as likely to influence the assessment and acceptance of your application – must be disclosed to the Company. If you fail to do so, the Company will be obliged to make your Policy void and reject any claim. If you are in doubt as to whether any fact is material you should disclose it.” Beneath that there was a paragraph 1 that began:- “I/we declare that I/we the proposed life/lives insured am/are in good health and that all statements in the Declaration and to any medical examiner appointed by the Company, whether in my/our handwriting or not, are to the best of my/our knowledge and belief true and complete.”

[16]It was not true that Mr Mundi had not consulted any medical adviser in the Second Disclosure Period. That period began not with the Lapse Notice but in May 1997. During the period down to the “Declaration of Continued Good Health” of 8th January 1999 Mr Mundi had consulted a medical adviser on 14th October 1997, 18th December 1997, 4th April 1998, 29th October 1998 and 23rd November 1998. He should therefore have answered “Yes”. He would then have had to provide his usual Doctor’s name and address (which he did) and to have provided “the full details” of such consultations.

[17]What would a description of those “full details” completed with the required candour and fullness have disclosed?

[18]As to that, the written medical records are the best evidence now available. They are written in part with the traditional illegibility but Dr Harris has done his best to transcribe the same and I will rely on his version of what they say. Of the five undeclared consultations, three seem to me such as unarguably to be not material in the sense I have described. The consultations of the 18th December 1997, the 4th April 1998 and the 29th October 1998 were concerned principally with sensible preparations for a visit to India.

[19]Of the remaining two, the latter in time, of the 23rd November 1998, began:- “23/11/98 Returned from India on Sunday. Vomiting and diarrhoea.” The note suggests nothing in the way of chronic digestive or abdominal complaints or even a susceptibility to the same but rather suggests a link with the then very recent return from India “… on Sunday”, the 23rd being a Monday. I do not hold a failure to disclose this consultation as being a failure to disclose something material in the sense I have described.

[20]That leaves the consultation of the 14th October 1997, a consultation with Dr Sethi (who did not give evidence) and which reads as follows:- “14/10/97 Sethi. Drinking ½ bottle/day 3/52 (3 weeks) Binge drinking No bowel and ? ? ? Had counselling at work Discussed to attend EACH FBC full blood count LFT liver function test.” Binge drinking No bowel and ? ? ? Had counselling at work Discussed to attend EACH FBC full blood count LFT liver function test.”

FBC full blood count

[21]“EACH” is a reference to a body called, in full, “Ethnic Alcohol Counselling, Hounslow”, a body which, on the evidence, I can take to be roughly equivalent to Alcoholics Anonymous but with the particular interests which its title suggests.

[22]It would be too much to expect a lay applicant to remember every detail of a medical consultation of almost 15 months before but a layman’s candid disclosure would, in my view, have had to include that he had then told his doctor that he had been drinking heavily, that he had had counselling at work, that he had had a discussion with his Doctor as to attendance at EACH and had had a liver function test. Dr Saleh a G.P. in the Group Practice to which Mr Mundi belonged, who was called to give evidence by the Claimant, gave evidence that Dr Sethi’s notes suggest that the liver function tests were required because of the level of drinking of which Dr Sethi was then told. I would thus expect that Mr Mundi had been told by his doctor something on the lines of “With that sort of drinking, we had better have your liver tested” and that Mr Mundi would have thus been able, and was reasonably to be required, to disclose not only that he had a liver function test, its result (at least as to whether normal or not) and that the reason for it had been his then-disclosed level of drinking, all as part of the “full details”.

Was there material non-disclosure at re-instatement?

[23]It is a commonplace amongst life insurers that they are interested in their applicants’ drinking habits and Lincoln’s own form of application is illustrative of that interest. In my judgment a prudent insurer conducting life business would have regarded the facts (had he known them) that Mr Mundi had indulged in binge drinking, that (as it seems) he had for three weeks drunk at the rate of ½ bottle a day and had, because of his drinking, been required or advised to take a liver function test as matters requiring further inquiry. He would have wanted to know the frequency and, as it were, the length and depth of the binges, whether the ½ bottle was spirits or wine and whether the three weeks referred to was the binge referred to and perhaps a solitary binge or was indicative of a longer-lasting problem. He would also have wanted to know the result of the liver function test. It could be that the probability of a need for fuller inquiry itself proves materiality but then, in addition, there were the references to counselling.

[24]Counselling at work suggests drinking at a level and persistency that has drawn attention to itself during working hours, possibly such as has impaired performance at work and such as was likely to have been of a frequency or duration beyond the occasional binge. Dr Saleh accepted that advice from a doctor as to counselling suggested that the patient had a serious drink problem. That there should then have been a discussion as to attendance at EACH suggests that the counselling at work had either not been completed or, if completed, had so failed to achieve its object that new counselling was recommended. The disclosure that Mr Mundi’s drinking had been of a kind such that he had received counselling at work and was such as to have attracted a discussion with his doctor as to his attendance on EACH would in my judgment, unguided by any expert evidence, have alone been facts which the prudent insurer, had he known of them, would have taken into account as factors in his coming to a decision at least as to the premium to be demanded for acceptance of the risk he was being offered and a fortiori would have been such factors when linked to the other undisclosed information derivable from the consultation of 14th October 1997. In considering materiality I must be astute to keep separate the practice of the notional prudent insurer and the practice of Lincoln but it is of some comfort in concluding as I have thus far that the evidence of Lincoln, which I shall come on to in more detail below, was that it would have been concerned about counselling.

[25]Mr Mundi’s failure to mention in any way the consultation of the 14th October 1997 in my judgment represents a non-disclosure of material circumstances. That, though, is far from decisive of the issues before me; I need to look into whether Lincoln was induced by that non-disclosure to issue the Policy on the terms it incorporated.

Did that non-disclosure induce the re-instatement?

[26]The Re-instatement Application was assessed by Parminder Vedhany, who is no longer employed by Lincoln. Lincoln’s practice at the time (as given in evidence in the witness statement of Stephen Watts, a Senior Claims Technician at Lincoln and bolstered by that of Miss Wood, a Senior Claims Assessor and Underwriter at Lincoln) was that an internal checklist was worked through and if, amongst others, the question “5. Has a doctor been consulted?” had been answered “No” and the others were also answered “No” then the re-instatement would be accepted without reference to the underwriting department but that if any of the questions was answered “Yes” then the application had to be referred to that department for fuller assessment. The “Re-instatement Checklist” completed by Mr Vedhany is in evidence and speaks for itself. It cites the policy number; it gives the ages of Mr and Mrs Mundi. Above the questions raised it says “Please refer all cases to underwriting if any of the following answers is Yes”. Under the heading of “The Declaration of Continued Good Health” it includes the question 5 I have cited above and the form is marked by Mr Vedhany with a “No” against question 5. At its foot the form is completed to read “Re-instatement approved by ….. Parminder”, the alternative, left blank, being “Passed to an underwriter by …..”.

[27]When it is inducement rather than materiality that is being examined and it is raised in relation to re-instatement where the Insurer has a practice such as I have described above I see no reason why the question to be asked by the Court is other than “Was the assured’s representation infact relied on?”. It is not, in other words, relevant to examine, whether, for example, Lincoln’s practice on the re-instatement was either imprudently lax or unnecessarily defensive or what would have happened if full disclosure had been given but simply whether the answers given by the applicant for re-instatement had induced re-instatement. On the evidence the answer, it seems to me, can only be “Yes”.

[28]If I were to be wrong as to that and if it were appropriate to look further so as to see what would have been likely to have happened had Mr Vedhany referred the re-instatement application to the Underwriting department then there is other evidence of Mr Watts and Miss Wood that becomes in point.

[29]Mr Watts’ experience of underwriting began only in January 2001. In cross-examination he said that whilst by January 1999 there was no evidence of continuing heavy alcohol consumption by Mr Mundi there had been reference in the notes of the consultation of October 1997 to Counselling. A reference to EACH or, for example, to Alcoholics Anonymous, could, he said, cause concern and would make a difference even if as to events of 15 months before. He would want to check back. “We wouldn’t re-instate if [the applicant for re-instatement] had been advised to go to AA even 15 months before”. Credit would be given to the applicant for the fact that there was no other medical consultation related to alcohol in the remainder of the period from 15th October 1997 to the application for re-instatement but there would be concern at the lack of information as to what had happened in relation to the Counselling.

[30]Miss Wood, whose underwriting experience had begun in 1998 and whom I found to be an impressive witness, had put to her the hypothesis that Mr Mundi had disclosed the consultation of October 1997 and that she, Miss Wood, had had the re-instatement application referred to her as an underwriter in January 1999. Surely, said Mr Tolley, she would have regarded the events of October 1997 as a single episode of some 15 months before and would have given Mr Mundi credit for there having been no indication of any alcohol-related medical condition since. Her answer was that that would have been so only if Lincoln had been given the results of the Counselling. “We’d have had to be satisfied but we simply didn’t know. We’d have had to get him examined”. She would have referred the matter to Lincoln’s Chief Medical Officer. It was suggested to her that there would have been a re-instatement. “No”; she said; “that Counselling had been advised required further evidence and we’d have asked for a medical examination even though the advice had been of 15 months before”. I accept her evidence. What the outcome of the medical examination would have been she very reasonably could not say but I note that Lincoln’s Chief Medical Officer’s assessment, when, on 25th February 2004, he looked at the file, was that Mr Mundi would have been rated “at least +100”, suggesting, unless sufficient credits were available to Mr Mundi, that he would not have been accepted at a standard rate.

[31]On the evidence of Mr Watts and Miss Wood, and even if Parminder Vedhany’s action should not itself be regarded as amounting to a proven inducement, I hold that the non-disclosure of the consultation of October 1997 was relied upon by Lincoln. It induced Lincoln to re-instate without any medical examination a policy which, had there been a candid disclosure, would have required a medical examination to have been made before any re-instatement would have taken place. Had there been a medical examination the probability is that the medical records for the whole of the Pre-application Disclosure Period and the whole of the Second Disclosure Period would have been required by the Chief Medical Officer and would have been closely studied by him and by Lincoln’s underwriters.

[32]The question of what would have happened had there been such a study is inescapably to some degree hypothetical but the study would have disclosed not only the full medical history of Mr Mundi but also his shortcomings as to disclosure in his original application, a subject which I shall return to below. Those shortcomings would have been likely to cause a degree of mistrust on Lincoln’s part as to Mr Mundi’s responses. It is not clear to me that I should have to embark on a speculation so as possibly to improve the case of those on the side of the very misrepresentor whose want of candour has brought about such uncertainty as exists but in any event that need does not, in my view, arise. The disfavour or mistrust likely to have been engendered by Lincoln’s finding out that there had been a want of adequate and candid disclosure in the original application (as I shall turn to below), coupled with the full study of the medical records that would have been asked for and considered by the Chief Medical Officer would, in my judgment, have led to Lincoln at least to not re-instating the Policy at an unadjusted premium level. Indeed, the full study unaccompanied by disfavour or mistrust would very probably have had the same result.

[33]Thus, whether Parminder Vedhany’s action of itself sufficiently indicates inducement or whether one has to look more broadly, as I have, at what would probably have happened, either way, in my view, there has been inducement within the meaning discussed earlier.

[34]As, in my judgment, Lincoln has thus made good its case both as to materiality and inducement it is entitled to avoid the Policy. If I am right so far that is the end of the case. However, lest I am not, I shall look first at the nature of the disclosure which Mr Mundi made when he completed his application form for the Policy, then at the facts as they were at that time in May 1997 and finally at whether there was material non-disclosure such that Lincoln was thereby induced originally to issue the Policy as it did.

Disclosure in the original application: alcohol

[35]On the 11th May 1997 Mr and Mrs Mundi completed the application form for the life policy with Lincoln. No question arises as to Mrs Mundi’s disclosure so I shall look only at what Mr Mundi said. Under the heading “Your health” the form said “If the answer to any of the following questions is “Yes”, or you are in any doubt as to the answer, please give details in the box provided overleaf”. Question 6 said:- “6. Do you drink alcohol? If so, please give details of the number of units consumed per week (1 unit = 1 glass of wine, 1 measure of spirits or ½ pint of beer). If your consumption of alcohol has ever been substantially higher please give full details below.”

[36]It is for the Court to determine what those requirements mean; it is not a matter for evidence from the insurer. I suspect that the question as to units a week is deliberately left vague but I cannot think it is open to an applicant to reduce his figure by reference to an average arrived at over a long period which includes long spells of abstinence. To take an extreme example, it would surely be absurd if an applicant at age 50 who had abstained until he was 45 but who had thereafter drunk a litre of whiskey a day would be able to supply an average arrived at over the whole of his adult life and not expect avoidance of his policy, even if the latter part of the question – has consumption ever been substantially higher? – had not been raised. The object of the question as to units per week on its own is surely to give a fair picture of the applicant’s contemporary drinking habits – the present tense is used - a picture that would seldom be painted for a man who did drink at the time of the application by including in the computation earlier periods of abstinence.

[37]Mr Mundi answered question 6 by indicating the answer to be “Yes” and 8 units per week. Below the question 6 and referring to question 6 and a number of other questions the form said “Use this space to provide details if you have answered “Yes” to any of the above questions. Please provide dates, diagnosis and results where applicable”. The blank space was left empty. Mr Mundi was thus saying, inter alia, that his consumption of alcohol had not ever been substantially higher than 8 units per week. Beneath the blank space Mr Mundi identified Dr Sethi as his doctor and gave the doctor’s address. The form continued but changed its style; instead of being conventional black print on a white background it changes, to give greater emphasis, to white on a black background. In that part of the form it said as follows:- “Please read this notice before you sign – All material facts – which means facts that an insurer would regard as likely to influence the assessment and acceptance of your Application – must be disclosed to the Company. If you fail to do so the Company will be entitled to make your policy void and reject any claim. If you are in doubt as to whether any fact is material, you should disclose it.” Then the form reverted to black on white and continued towards its end, saying:- “Please read the declaration and the instructions below carefully 1. We declare that I/we the proposed life/lives insured are in good health and that all statements in the application(s) ….. …… whether in my/our handwriting or not, are to the best of my/our knowledge and belief true and complete.” Below that both Mr and Mrs Mundi signed the form on, as I have mentioned, the 11th May 1997.

[38]The Policy when it emerged, contained, as clause 1 of its Terms and Conditions, the following provision:- “1.(a) (A) The Company has entered into this contract with the Policyholder relying on the information provided in the application, any declarations made to the Company and any answers given by the Policyholder or the Life Insured to any medical examiner acting for the Company.

(b) (B) The application, any declarations made and any answers given by the Policyholder or the Life Insured to any medical examiner acting for the Company, form part of this contract.

[39]There was provision for a waiver of premium if and so long as Mr Mundi suffered a disability as there defined for a continuous period of 6 months.

What were the facts as at the 11th May 1997?

[40]This question requires consideration not only of Mr Mundi’s medical records but also of the oral and written evidence of Dr Sethi, Mrs Mundi, her and her husband’s daughter, Harpinder Kaur Mundi and Mr Mundi’s colleague at work, Mr Bullock.

[41]I shall look first at the medical records as interpreted by the single joint expert. I shall leave out those which do not touch Mr Mundi’s drinking. The references on that basis are as follows:- “27/2/82 Dr Mangat: Had heavy drinking previous day Vomiting now 25/ 10/86 [This note is especially difficult to read but refers to very bad headaches and has a reference to alcoholic toxicity (or toxication)]” Vomiting now bad headaches and has a reference to alcoholic toxicity (or toxication)]”

[42]Mr Tolley complains that there was no pleaded reliance upon this document of the 25th October 1986 but that seems to have come about chiefly because the reference to it in Dr Harris’s transcription was incomplete. It was in the bundles, was referred to in the course of the trial without being objected to and, for what it is worth, which cannot be much, it was received into evidence and in my judgment can be relied on by Lincoln. “23/10/89 Hillingdon Hospital Dr G.D. Perkin Consultant Neurologist diagnoses migraine headaches. “He drinks two scotches night and I suspect it may be more than this” 28/1/93 C 2H 5OH XS (excess) nausea and vomiting” I interpose that C 2H 5OH is one way of expressing the chemical formula for alcohol. There is next a reference to a liver function test and the notes disclose:- “22/6/94 bilirubin 26 (2-17) alkaline phosphatase 147 (100-280) ALT 70 (0-37) Gamma GT 17 (11-15) 8/7/94 Stopped drinking now Rpt (repeat) LFTs (liver function tests) end of this month O4/08/94 Blood glucose 8.3 (3.6-6.7) Bilirubin 10 (2-17) Alkaline phosphatase 113 (44-124) ALT7 (0-37) Gamma GT 17 (11-51)” “He drinks two scotches night and I suspect it may be more than this” alkaline phosphatase 147 (100-280) ALT 70 (0-37) Gamma GT 17 (11-15) Bilirubin 10 (2-17) Alkaline phosphatase 113 (44-124) ALT7 (0-37) Gamma GT 17 (11-51)”

Gamma GT 17 (11-15)

[43]I interpose that the figures in brackets against 22/6/94 and 4/8/94 are the normal range for liver functions in good ordinary health and the readings thus indicate that, whereas on the earlier test 3 of the 4 readings had been outside the normal range, by 4/8/94 only as to Mr Mundi’s blood glucose level was his reading outside the ordinary range. It would be fair to add that the next entry indicates that by the 7th December 1994 his blood sugar level had fallen to 6.7, the top figure for the normal range. Whilst Liver Function tests can, of course, be suggested for reasons unconnected with drinking, the context here and the note of 8/7/94 both point to the tests here being done because of Mr Mundi’s consumption of alcohol. Continuing with the medical notes:- “20/9/95 (Telephone call recorded into notes by receptionist) Patient vomiting blood-black Drinking for 4 days. 999 => hospital Dr Ruparelia advised” Dr Ruparelia is now the senior partner of the Group practice to which Mr Mundi belonged. “20/9/95 Dr Ruparelia wrote: I did talk to Mr Mundi. Mr Mundi was drinking. Now vomiting blood-black colour. Advised 999 A & E (Accident & Emergency = Casualty) 29/11/95 NP (New Patient Registration) check ………. ………. Alcohol 1 bottle whiskey/week Advised Exercise bike 2x week” Patient vomiting blood-black Drinking for 4 days. 999 => hospital Dr Ruparelia advised” I did talk to Mr Mundi. Mr Mundi was drinking. Now vomiting blood-black colour. Advised 999 A & E (Accident & Emergency = Casualty) A & E (Accident & Emergency = Casualty) ………. ………. Alcohol 1 bottle whiskey/week Advised Exercise bike 2x week”

A & E (Accident & Emergency = Casualty)

[44]That is the totality of relevant references in Mr Mundi’s medical notes during the Pre-application Disclosure Period as the next note referring to alcohol is the note of the consultation of he 14th October 1997 to which I have earlier referred in relation to disclosure for the purposes of re-instatement.

[45]Whilst numerically there were only a small number of alcohol-related incidents over the long period from February 1982 to May 1997, they include 5 occasions when on the face of things Mr Mundi had been drinking enough to cause or contribute to symptoms that made a visit to or from his doctor or to hospital at least desirable if not necessary. I would include the incidents of February 1982, October 1986, January 1993, September 1995 and November 1995 as such occasions. Moreover on one occasion, when the consultant neurologist had been approached, Mr Mundi had (as it would seem) indicated that he drank 2 scotches a night, a figure which caused the neurologist to “Suspect it may be more than this”. Whilst some of the occasions may have represented “binges” with, possibly, periods of abstinence or low consumption in between them, the informing of the neurologist that he drank 2 scotches a night suggests that if there were binges they were not separated by periods of total abstinence or indeed of consumption at only 8 units a week. Nor do the medical records to which I have referred paint a picture in which Mr Mundi could have responded to the requirement “If your consumption of alcohol has ever been substantially higher please give full details below” with no details having been given in the blank space provided. In my judgment the medical records, viewed on their own, suggest that Mr Mundi’s application form was not truthfully filled in.

[46]But it is not only the evidence of the medical records that is put before me as to Mr Mundi’s drinking. I must look at the other evidence on the subject.

[47]First there was Dr Mehboobali Saleh. In his written evidence he accepts that Mr Mundi’s medical notes suggests that he had intermittent sporadic alcohol excess. His oral evidence included that he did not see Mr Mundi until on or after the 19th September 2001. He thus had no evidence based on personal knowledge as to the Pre-application Disclosure Period. He could and did give evidence as to incidents related to alcohol in the Final Period but I do not see such incidents as relevant to the truth or otherwise of Mr Mundi’s original disclosure. Dr Saleh agreed in evidence that those whose alcohol consumption can be criticised are likely to underestimate their intake, a view which common sense suggests is likely to be the case and which leads to the view that the indication to the consultant neurologist of 2 scotches a night was very likely, as the neurologist thought, to be an underestimate. Nothing in Dr Saleh’s evidence displaces the view that Mr Mundi’s original disclosure was untruthful as to 8 units a week and incomplete in relation to the answer as to whether his consumption had ever been higher.

[48]Next came the evidence of Mr David Victor Bullock, an Account Director with BT Major Business Commercial and Brands and a former work colleague of Mr Mundi. Mr Mundi was plainly a very hard working, accomplished and successful worker at British Telecom. Mr Bullock never saw him the worse for wear or in any way unreasonably influenced by alcohol. He could not remember Mr Mundi being the worse for drink even on an occasion when alcohol was freely provided. He set himself, said Mr Bullock, a high standard and prided himself on being a perfect rôle model for his family. But there were, inevitably, gaps as to periods of Mr Mundi’s life of which Mr Bullock could speak. He did not see Mr Mundi socially outside work. There had been one occasion in the Final Period, on the 29th November 1999, an occasion I shall need to come back to later, when Mr Mundi had been to hospital on a working weekday after drinking (according to the contemporary note) approximately a litre of whiskey that day and after having drunk excessively over the then previous three weeks. Mr Mundi was in such a state that he was taken to hospital incontinent of urine and with a one-inch deep laceration to his chin caused by a fall. Mr Bullock had not even known that he had not been at work. “I wouldn’t know if he was [working] at the office or at home” said Mr Bullock. When, on that occasion, Mr Mundi had sobered up he had been given a suture but Mr Bullock had not even seen that he had had any stitches. Mr Bullock, as I have mentioned, never saw Mr Mundi “the worse for wear” but it has to be accepted that it is possible for a person to drink so heavily that his health is affected without his consumption leading to him being seen by work colleagues as being “the worse for wear”. Mr Bullock did not know that Mr Mundi had been advised to receive or had received counselling at work. I do not doubt Mr Bullock’s veracity and I accept that, as he said, if he had been asked whether Mr Mundi had had a drink problem, he would have firmly said “No”. But in the same answer Mr Bullock said, as evidence as to Mr Mundi’s drinking and health was put in front of him, that “There’s a lot here I didn’t know about”. Nothing in Mr Bullock’s evidence displaces the view I earlier indicated as to the inadequacy and untruthfulness of Mr Mundi’s original disclosure.

[49]Mrs Mundi’s written evidence gave a picture of her husband as a man who from time to time would have the odd glass of whiskey before or after dinner or just before going to bed but who did not drink every day or even every week. She thought that 8 units a week was correct as a broad average of his weekly alcohol consumption. He was, she said “Never a heavy drinker” and sometimes drank nothing at all for months at a time. “I never in 20 years of marriage saw my husband drunk”. Of the medical notes of his drinking a bottle of whiskey a week (29.9.95) she supposed that had been true of some weeks but she asserted that the reference was not to a 70 centilitre bottle but a smaller 35 centilitre size. Her witness statement asserted that she did not recall his being drunk on the occasion in November 1999 when he had cut his chin. Of the medical notes of 14.10.97 “Drinking ½ bottle/day” she said that that, too, was a reference to the 35 centilitre size as her husband never bought the larger size. She reiterated that she never saw him drunk. She ended by writing that his alcohol consumption “Was never significantly in excess of those stated amounts”, a reference, as it seemed, to 8 units per week.

[50]I need to make a number of points before looking in more detail at Mrs Mundi’s oral evidence, which she gave in Punjabi through an interpreter. Firstly, she was, of course, not in her husband’s company at all times. Both of them worked and at different locations. He was required to stay away from home on some occasions by reason of his work. It would obviously have been possible for him to have drunk out of her sight. Secondly, even had it been true that she never saw him drunk, that is an answer that does not necessarily relate to the amount that he consumed; tolerance of and reaction to alcohol varies and I cannot take it to be impossible for some to be able habitually to consume a very good deal more than one and a fraction whiskies a day (i.e. the declared 8 units a week) without ever appearing drunk. Thirdly, one might reasonably expect a family man to do his best to conceal any excesses from his wife and children. Indeed, if in this respect her oral evidence was truthful, there is a reason to believe that her husband did keep things from her; she professed not to know about EACH or counselling at his workplace.

[51]Fourthly, if it was the case that for months on end Mr Mundi abstained totally, that, of course, could bring his average down so as to arrive at a truthful 8 units a week when looking at a period of several months but it is not possible, in the light of the medical notes, to accept her view that his consumption was never significantly in excess of 8 units a week. The incident of the 28th and 29th November 1999 (in the Final Period) is an example of why that is so. The medical notes (with my emphasis) read as follows:- 28/11/99 16.10Attended Casualty Department Hillingdon Hospital. Self referrer. History 3/52 (3 weeks) ago started drinking alcohol + + + (5 years ago similar episode of drinking alcohol) Diarrhoea 2/52 (2 weeks) ? Haematemesis for 2 days (history from wife) Pt [presumably patient] Not in department – sitting in car o/a (on arrival) to dept – looks unwell – has been drinking whiskey today. c/o (complaining of) central abdo (abdominal) pain Patient uncooperative, left the department, went home Hospital. Self referrer. History 3/52 (3 weeks) ago started drinking alcohol + + + (5 years ago similar episode of drinking alcohol) Diarrhoea 2/52 (2 weeks) ? Haematemesis for 2 days (history from wife) Pt [presumably patient] Not in department – sitting in car o/a (on arrival) to dept – looks unwell – has been drinking whiskey today. c/o (complaining of) central abdo (abdominal) pain Patient uncooperative, left the department, went home 52. 29/11/99 Attended Casualty Department Hillingdon Hospital. Self referrer. Initial complaint LAC (laceration) TO CHIN ETOH (alcohol) + + + History of presenting problem:

“999” call – Has drunk? Approx 1 litre of whiskey today. Has been drinking excessively over last 3/52 (3 weeks). Has fallen at home witnessed. One inch deep lac (laceration) to chin. No LOC (loss of consciousness). Has been incontinent of urine. Drowsy but rousable. Blood sugar 4.2 Clinical notes. Known ETOH (alcohol) abuser seen yesterday after alcohol + + DNW (did not wait) to be seen today after 1 litre of whiskey fell and injured chin. GCS 13/15 incoherent mumble Wound cleaned and stitched.”

Initial complaint LAC (laceration) TO CHIN ETOH (alcohol) + + + Blood sugar 4.2 Known ETOH (alcohol) abuser seen yesterday after alcohol + + GCS 13/15 incoherent mumble Wound cleaned and stitched.”

GCS 13/15 incoherent mumble

[52]It will be noted that the record of the 28th November 1999 includes that it was Mrs Mundi who had given the Casualty Department the “history” that her husband had been drinking alcohol for some 3 weeks “ + + +” and had endured two days of haematemesis, the vomiting of blood. In oral evidence she accepted in cross-examination that she had been with her husband on the visit to the Casualty Department at Hillingdon Hospital and when it was put to her that it was she who had said that her husband had been drinking alcohol for 3 weeks she said “One or two drinks – not much”. In context the answer was literally incredible.

[53]I find it difficult to contemplate a drinking man speaking of his alcohol consumption to his doctor by reference to a bottle of whiskey a week or half a bottle a day to be speaking by reference to anything but the usual full size of bottle. That, as the ordinary usage, is what, in the absence of evidence to the contrary, I would take the doctor to have had in mind as being what was being referred to. A patient is more likely to understate than overstate his consumption. That the size of bottle bought by Mr Mundi was usually the half size did not, as I see it, affect the extent of his consumption that he was declaring to his doctors. That the half bottle size was the size generally bought is no indication, of itself, of moderation. The half bottle has the advantage to the drinker as it is obviously more readily concealed or carried in a pocket. Eventually in cross-examination Mrs Mundi accepted that she did not know what size of bottle her husband had been referring to but it had to be dragged out of her. No doctor was called to give evidence to the contrary and I take the bottle referred to as being the full size; I reject her original assertion that it had been half that.

[54]It was put to her in cross-examination that her husband had been completely drunk during the incident in November 1999, to which she replied “Maybe sometimes” but that “He was not heavily drunk according to me”. It is to be remembered that he was incontinent of urine, “drowsy but rousable” and mumbling incoherently after having drunk approximately a litre of whiskey that day on top of 3 weeks of drinking “+ + +”. I cannot accept that he was not then heavily drunk. When it was put to her that her husband had at times been a heavy drinker she said “Not all the time but occasionally – but anyone can do that”. I cannot accept the incident of November 1999, which included the vomiting of blood and led to a hospital visit, as honestly describable as the sort of occasional lapse of a kind such that “Anyone can do that”.

[55]There were two further medical incidents not relevant to disclosure because they were after the 14th January 1999 but which are relevant to an assessment of Mrs Mundi’s credibility. The medical notes for Mr Mundi as at the 3rd December 1999 read:- “Laceration on chin Followed drink (illegible) Binge drinking Has been binging Since Diwali Now has stopped Has contacted EACH and counselled At work It seems that he can stop. Not much drinking (Illegible).” In that year Diwali was on the 7th November and so the binge drinking that had been recorded was only a little short of a month in duration. It would, surely, have been remarkable had Mrs Mundi not been able to observe it as heavy drinking rather than mere social drinking at some points during that period. Followed drink Binge drinking Has been binging Since Diwali Now has stopped Has contacted EACH and counselled At work

It seems that he can stop. Not much drinking

[56]The other incident was on the 6th September 2000 as to which the note reads:- “Pt (patient) had stopped alcohol But for the last 3-4 Days drank with empty stomach.” But for the last 3-4 Days drank with empty stomach.”

But for the last 3-4

[57]The drinking is not recorded in the notes as being excessive and I would not see the medical record of the 6th September 2000 on its own as indicating any unreliability in Mrs Mundi’s evidence but eventually in her cross-examination she said, and I accept, that she did not know how much he was drinking. By the end of her cross-examination it had become clear, I am sad to say, that she was not merely an unreliable witness but thoroughly lacking in credibility and all too willing to give false evidence.

[58]The last of the Claimant’s witnesses is Miss Mundi. As had her mother’s, her witness statement pictured her father as a light and occasional drinker, of whiskey, and as a man whom she had never seen drunk nor even with a hangover. As her mother had said, he would often go weeks or even months without drinking. But Miss Mundi had been only 16 when her father had died and of course had been younger still in 1997. Not only would she have been very often out of her father’s company and hence not able to say whether he was drinking or not but one might expect him to have wished to conceal any excesses from his children. That he was not seen to be drunk does not of itself speak to the amount he was consuming. Miss Mundi had to some extent sought, as her mother had also done, to stress how frequently her father drove, but I am unconvinced that the fact of driving necessarily tells one much about average consumption of alcohol or, indeed, about occasional excesses and certainly the example Miss Mundi gives in her witness statement of her father driving her and her sister to school in the morning says nothing to exclude the possibility that he drank later in the day. Unfortunately for her, Miss Mundi greatly damaged her credibility when in oral evidence she firmly asserted, speaking of a time when she was only 12 years old and where the medical notes of the 14th October 1997 recorded her father’s drinking as being at half a bottle a day and to his drinking for 3 weeks, that her father “Would have been referring to the small size of bottle”. She could not possibly have known what her father had in mind when he spoke to his doctor and it will be remembered that even her mother had eventually acknowledged that she did not know what size bottle had been referred to. I cannot regard her evidence as reliable; it may be that she allowed an understandable wish to protect her father’s memory to outweigh a respect for the truth.

[59]Looking at the evidence of Mr Mundi’s drinking as a whole, whilst I cannot put a precise figure that would have been the truthful answer, I conclude that his answer as to 8 units a week could possibly have been true as an average over long periods including periods of total abstinence but that the probability was that whilst he was drinking at all, as he was at the date of his application, his weekly consumption well exceeded, as an average, 8 units a week. His failure to give any, let alone full, details of times when his consumption had been substantially higher than 8 units a week in my judgment rendered his disclosure inadequate and incomplete; a truthful response would have required him to disclose at least his drinking a bottle of whiskey a week (some 25 or so units a week) around the 29th November 1995, the 4 day stint leading to the vomiting of black blood and an accident and emergency hospital visit in September 1995 and the excesses of 28th January 1993.

Disclosure in the original application; stomach disorders and liver function tests

[60]Amongst the questions in the application form which Mr Mundi answered with a “No” were these:- “4 (c) Have you ever …. received treatment or tests or investigations for;- ….. (iv) any digestive disorder including stomach/bowel problems ….. (viii) any disorder of the … liver including sugar or albumin in the urine If the answer to any of questions 4 (c) above is “Yes” please complete the appropriate section in the Medical Questionnaire which constitutes part of your application for insurance.” ….. (iv) any digestive disorder including stomach/bowel problems ….. (viii) any disorder of the … liver including sugar or albumin in the urine

[61]The same space left for details of alcohol consumption was left for answers to 4 (c). There is no pleading that Mr Mundi did have treatment or tests for a “digestive disorder” and without medical guidance I would take the haematemesis, to judge from the times when it occurred, as more a drinking disorder or problem than a stomach or bowel problem or a digestive disorder. There was, moreover, no evidence that Mr Mundi had ever known that he had anything properly classifiable as a digestive disorder. Thus in my view Lincoln cannot make anything of 4 (c) (iv). But Mr Mundi should have disclosed his liver function tests which were in the Pre-Application Disclosure Period, on the 22nd June 1994 and the 4th August 1994. There was a later test, as follows:- “21/10/97 Blood glucose 5.2 (3.6-6.7) Bilirubin 12 (2-17) Alkaline phosphatase 52 (44-124) ALT 143 (37).” It will be seen that that last figure was hugely outside normal range. The test of 21.10.97, after the Pre-Application Disclosure Period and not falling within what was asked to be disclosed on re-instatement, was nonetheless a test which would have come to a prudent insurer’s notice had he been likely to have raised inquiries and to have asked for that report, as I shall come on to. Bilirubin 12 (2-17) Alkaline phosphatase 52 (44-124) ALT 143 (37).”

Were the defects in the disclosure at the inception of the Policy material?

[62]Whilst I recognise that, as to “materiality” I am, as I have mentioned, to ask myself how the notional prudent insurer would have acted, I have had, as I have said, no expert evidence on the subject, and, so far as concerns the practice of underwriters, I have only evidence as to how Lincoln itself acted. In the circumstances I feel entitled to regard the practice of Lincoln as the practice of prudent underwriters generally unless and until I find something suggested that seems imprudent or unreasonable or not such as seems likely to represent general practice in the industry.

[63]Apart from the “Initial Underwriting Course” manual to which I shall shortly refer, Lincoln did not have its own defined guidelines as to alcohol and acceptance of risk at ordinary or other premiums but used ones developed by its re-insurers, widely used guidelines called MAGI and SURE. Mr Watts, who was not unfamiliar with the guidelines in place, said that at Lincoln they constantly referred to the re-insurance guidelines but he could not be sure as to what particular guidelines had operated in 1999, nor had he spoken to Mr Wilton, the underwriter, no longer employed by Lincoln, who had first assessed Mr Mundi’s application. His evidence was accordingly less relevant than that of Miss Wood, who had done underwriting work for Lincoln from mid-1998 and who did, inter alia, life work for Lincoln. She was able to identify the MAGI package used in the material period; it was the same as the 1998 form of MAGI that was put in evidence.

[64]In the course of Miss Wood’s evidence (and she was the last witness to be called) she made reference to a document called “Initial Underwriting Course”, a work of some 80 pages used by Lincoln both as a training manual and as general guidance to its underwriters. She herself used it as a means of training would-be employees. Mr Tolley was thoroughly entitled to and did complain that it should have been disclosed months before. Miss Wood had referred to it quite freely and openly and I would not ascribe to her any decision not to disclose it. I permitted her cross-examination to be broken off so that Mrs Mundi’s advisers should have the opportunity first to be given a copy of the document and then to digest it before proceeding further. Mr Tolley would not have been slow to ask for more time had the Claimant’s side needed it and in the event I do not think any prejudice was suffered by the lateness of its disclosure, nor do I think it had been wilfully withheld.

[65]Miss Wood’s evidence was that if an applicant disclosed consumption at 30 units a week the most junior level of underwriter (who would have been a person of the level first to consider an application such as Mr Mundi’s) would either himself ask for further evidence or refer upwards to the next level of underwriter, who would do so. Either way one form or another of medical report would be asked for as a matter of course. Indeed, that would be asked for at an even lower level consumption if there were other conditions than merely drinking. If Mr Mundi had disclosed that he had been vomiting blood (20.9.95, but as was also referred to in a medical note of 21.11.95) she, as an underwriter, would, she said, have wanted to know what was going on. “You’d want to know what caused it”, regardless of the level of units disclosed being less than 30 units a week. Certainly if Mr Mundi had admitted that he had drunk heavily in the past a medical report would have been required as standard practice. The doctor’s report would not have been just as to the vomiting of blood or as to diabetes (which for a time was thought to have been something Mr Mundi suffered from) but would have been as to the whole picture of his health. Even a single episode of haematemis would have led her to consult Lincoln’s Chief Medical Officer as otherwise one would not have known what it was that one was about to underwrite. Had the liver function tests come to light she would have asked for medical advice as to the underlying causes of the raised figures that would have been seen. It would be prudent to check. She felt it was unusual for a GP to record in his notes particular levels of consumption and that the patient had sought advice; she felt that that suggested consumption beyond social drinking. The MAGI guidelines did not lead to hard-edged categories, the underwriter had to look at the overall picture.

[66]I have not detected practices at Lincoln that might not have corresponded to those of the prudent insurer and on this view of the evidence there were plainly a number of factors not disclosed to Lincoln which a prudent insurer would have taken into account, had he known of them, in coming to a decision. The average consumption being in all probability above 8 units over any week in which there was drinking – even two whiskies a night would be 14 units a week - the occasional heavy drinking stints in the past such as led to visits to the doctor or to the hospital, the fact that liver function tests had been required and the haematemesis were all undisclosed matters which both the prudent insurer and Lincoln would, on the evidence, have taken into account had he or it known of them and would, in my judgment, have rightly been taken into account in deciding whether and at what premium to accept the risk being offered. Mr Mundi’s disclosure of only 8 units was, on the balance of probabilities, not in my view a sufficient or candid disclosure but more particularly, the failure to answer that his consumption of alcohol had been on occasions substantially higher and to give details thereof represented a material non-disclosure.

Did the defects in disclosure induce the issue of the Policy at the standard rate?

[67]On the evidence Mr Mundi’s underestimate of his consumption and his failure to give details of passages when the declared consumption was significantly exceeded induced the issue of the Policy without Lincoln asking for such report (either from his own GP or from its nominated Medical Adviser) that a truthful and complete disclosure would have led to. Had there been such a report it would have become apparent that the probability was that on the 29th November 1995 he had told his GP that he drank at the rate of 1 bottle of whiskey a week (whilst, as it seems from a note I have not so far cited, having declared only a few days before, on the 18th November 1995, that he consumed only 1 unit a week), that on the 20th September 1995 he had been drinking for 4 days, was vomiting black blood and became an emergency case at hospital, that there had been a break-out of excessive drinking in January 1993, a suspicion in October 1989 that he drank more than his then-declared two scotches a night, a condition suffered on the 25th October 1986 that seemed to require explanation but which had some relation with alcohol or its toxicity and another bout of heavy drinking in February 1982, all such incidents or conditions being such as to have led medical notes being made of them. Lincoln, applying the MAGI guidelines which it used, seeing that history, would in my judgment have been unable to rate Mr Mundi as no worse than a “free user, regular or frequent drinker” as to whom there had been “no evidence of impairment to which alcohol might have been a contributing factor”. The haematemesis, the seriousness of which was addressed by Miss Wood, in my judgment, in its context in the medical report of 20th September 1995, would in all probability have been regarded as evidence of some impairment of that kind.

[68]On that basis Mr Mundi would have attracted a rating. I do not see that he would, under the MAGI guidelines, have attracted credit “For each complete year since reform” as Lincoln would have had no reason, without more, to jump from the fact that the medical note next before his application had been in November 1995 to an assumption that his drinking since then and down to May 1997 had dropped below that last-declared bottle of whiskey a week. After all, his failure to disclose that his consumption had in the past sometimes substantially exceeded 8 units a week would have been likely to have generated a mistrust (shared by the consultant neurologist) of Mr Mundi’s evaluation of his own drinking. That being so, had there been the medical report which a candid and complete disclosure would have led to, the Policy would in my judgment have been issued but not at the standard rate at which it was in fact issued. Mr Mundi would have had to pay a higher premium. To that extent, at least, there was inducement of the kind which the law here requires. If Lincoln were able to pray in aid the presumption to which I have referred then, a fortiori, it satisfies the burden, which the law places upon it, of proving inducement.

Some general issues

[69]Whilst, in the absence of good reason to the contrary, it is plainly normal and desirable that, as to inducement, the actual underwriter concerned with the acceptance and assessment of the risk should be called to give evidence, there can be no rule that without that inducement cannot be proved. Especially will it be capable of being done without when it is not some esoteric risk that is being considered but something as commonplace, in a life insurance context, as the assured’s drinking, the underwriting reaction to which is a topic on which a company is likely to have ascertainable and broadly applied practices and guidelines. The question must always be whether such evidence as is called suffices (the onus being on the company) to prove inducement. I have had the guidelines used by Lincoln and its practices adequately explained, in particular by Miss Wood. Mr Tolley criticises her evidence as being “fiercely combative” but I disagree. I have already described her as an impressive witness. I found her to be an intelligent witness with a clear knowledge of the industry and of the requirements of her job. Her evidence, if anything, could well have been less self-serving than one might expect, had they been called, from the particular underwriters concerned, no longer in Lincoln’s employ, whom one could expect to be somewhat defensive. As to inducement, I have been satisfied on the evidence as I have indicated above notwithstanding that I have not heard the particular underwriters who were responsible either at the original acceptance or at the re-instatement of the risk.

[70]I am conscious that the medical notes relied upon are at points unclear as to their import, even after explanation from Dr Harris, and, at best, are only hearsay or double-hearsay evidence. However, in the combined circumstances that Mr Mundi, the patient, is dead, that neither Dr Ruparelia nor Dr Sethi was called, that Mrs and Miss Mundi’s evidence was unreliable or worse and that there were, inevitably, gaps in Mr Bullock’s personal knowledge of Mr Mundi’s drinking and medical condition, the notes are the best material put before me and, as I think I am entitled to suppose, represent contemporary assessments and records by indifferent witnesses.

[71]Mr Tolley has been very critical of Lincoln’s handling of Mrs Mundi’s claim under the Policy. Its practice, he said, was “Decline [to pay] first, ask questions later”. When he suggested that to Miss Wood she denied it but, whilst I have no doubt but that there was delay and some confusion and wavering on Lincoln’s part, there was, in my view, only tardiness, incompetence or insensitivity rather than any want of good faith in the treatment of Mrs Mundi’s case. There was not, as Mr Tolley would have it, an overriding concern to avoid payment.

Conclusion

[72]Accordingly, either by reference to the defects in the disclosure at re-instatement or in the original application, Lincoln is in my judgment entitled to avoid the Policy. The claim must therefore be dismissed.