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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Malekout v Allied Dunbar Assurance Plc [2004] EWCA Civ 192 (03 February 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/192.html Cite as: [2004] EWCA Civ 192 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(HIS HONOUR JUDGE SHAUN SPENCER QC)
Strand London, WC2 |
||
B e f o r e :
(DAME ELIZABETH BUTLER-SLOSS)
LORD JUSTICE CLARKE
LORD JUSTICE SEDLEY
____________________
CYRUS MALEKOUT | Claimant/Applicant | |
-v- | ||
ALLIED DUNBAR ASSURANCE PLC | Defendant/Respondent |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR S INNIS (instructed by Messrs Jerrard & Co) appeared on behalf of the Defendant
____________________
Crown Copyright ©
LORD JUSTICE CLARKE:
Introduction:
The Policy:
"13 Waiver of Contribution Benefit.
(1) Supplementary Definitions...
In this Provision:-
'Disablement' means bodily injury, physical or mental infirmity or illness arising directly or indirectly from any condition which first came into existence after the date on which the Policy was signed as shown on the Schedule...
(2) Availability of Benefit.
(a) Where this benefit is specified in the Schedule or in a notification from the Company as applying to the whole or part of Regular Contribution if, by reason of Disablement the Policyholder is totally incapacitated for a period exceeding the Deferment Period and thereby prevented from carrying on his usual Gainful Occupation (or any other Gainful Occupation which in the Actuaries opinion he is capable of and reasonably suited for) the benefit will apply as set out [in (3)] below. If this benefit is specified as applying to part only of a Regular Contribution, (3) [below] is to be interpreted as applying only to the specified part."
By clause 13(3), where the benefit applies under clause 13(2)(a), the policy holder's obligations to pay contributions is waived and his contributions will be treated as duly paid.
The Factual Background:
"Recently it has become apparent that [the appellant] may also have another medical condition (the diagnosis of which is still uncertain and under investigation). The blood supply to his left arm and shoulder have become restricted and he has been complaining of continuous pains, headaches, fatigue, loss of concentration and sleepless nights."
Throughout 1991 and into 1992 there followed a series of investigations of the appellant's condition. IVDSAs and MRI scans were carried out in March 1991, which showed a narrowing of the subclavian artery, and on 22nd March 1991 the appellant was found to have a difference of 10 mm in blood pressure between the left and right arms. He was diagnosed as suffering from TOS, which is a recognised syndrome where the patient suffers symptoms due to the obstruction of the inlet of the thorax, either of the neural pathways, ie branches of the brachial plexus, or vascular symptoms due to pressure on the subclavian vessels supplying the arms.
The Judgment. Conclusions of fact:
1. The appellant suffered a soft tissue neck injury, in January 1987, from which he subsequently recovered.
2. He suffered from a work related illness, known as TOS, from about 1989 or 1990, which caused him to retire on 15th December 1990.
3. He has suffered from TOS since then, without significant or lasting recovery.
4. The soft tissue injury in January 1987 was not causative of the appellant's TOS.
5. A medical syndrome is a demonstrable group of signs and symptoms which occur together to indicate an illness.
6. TOS is such a syndrome which was not present before about 1989 to 1990 and therefore not before July 1987.
7. The appellant has a congenital abnormality of his cervical ribs with fibrous bands which has existed since birth. That condition was described by the consultant neurologist Dr Turnbull as follows:
"I cannot believe that anybody would dispute that there are large, fully developed and bilateral ribs arising from the seventh cervical vertebrae. These are seen to articulate with the sternum. This is a developmental anomaly, that is a feature of Mr Malekout's make-up, unique to him and which of course has been present all his life. As Dr Khan points out, not only may the cervical ribs in themselves cause compression of the neural tissues and/or vascular structures passing in close proximity to them, but even more importantly associated fibrous bands frequently emanate from these ribs, usually attaching themselves to the under-surface of the next pair of ribs between them, which in this case would be the true first ribs. These bands are very difficult to image, but are readily discernible at surgery, their significance being the compressing effect they have on the neural and vascular bundles passing beneath them.
I have not had the opportunity of viewing the DSA images, but reading Dr Khan's report he was left in no doubt whatsoever that these showed narrowing of the left subclavian artery and of course that is exactly what I would have expected. If there is undeniable stenosis or narrowing of this artery, then one is bound to recognise that there may be similar compression of one or more nerves comprising the brachial plexus."
Mr Hasan agreed with those opinions.
8. The several ribs with fibrous bands were not themselves the cause of TOS, although, as Mr Hasan put it, they were essential background at least: "the TOS would not have developed but for the cervical ribs, but many people have such a congenital abnormality without developing TOS."
9. The most important objective sign of TOS in the appellant's case was the narrowing of the subclavian artery on abduction which did not occur until after July 1987.
10. Fibrous bands may or may not compromise the subclavian artery or nerve but if they do compromise the artery they are very likely to compromise the nerve, because of the closeness of the structure.
11. The posture adopted by a dentist will involve his neck being flexed for long periods of time, which triggers a state of affairs where the fibrous band from the cervical rib compromises the artery and, or the brachial plexus.
"4. Third, has the claimant established on the balance of probabilities that his disablement arose directly or indirectly from a condition which first came into existence after the date on which the policy was signed, that is to say 28 July 1987? To that question my answer is: No.
5. Still dealing with that third question to which I have provided the answer 'No', I set out three propositions to make clear upon what findings my conclusion on that third question rests:
(i) I accept, on the balance of probabilities, Mr Naveed Hasan's evidence that the symptoms of thoracic outlet syndrome first manifested themselves in 1988/1989, that is to say after the contract was signed.
(ii) I accept, indeed it is non-controversial, his evidence that the claimant has the congenital anomaly of cervical ribs with fibrous bands.
(iii) In 1987 when the contract was signed, the claimant had as part of his anatomy the necessary physical components for this kind of syndrome.
In my judgment the physical components constituted the 'condition' within the meaning of clause 13 of the policy. The syndrome arose directly or indirectly from the condition. It will be apparent that in relation to that last point I have preferred as a matter of language the defendants' construction of provision 13 to that advanced on Dr Malekout's behalf."
The Judgment. Conclusions On Construction.
"'Disablement' means bodily injury, physical or mental infirmity or illness arising directly or indirectly from any condition which first came into existence after the date on which the policy was signed and shown on the schedule..."
The judge first considered whether, in the phrase, "which first came into existence after the date on which the policy was signed", the word "which" refers back to condition or to bodily injury, physical or mental infirmity, or illness. He held it refers back to condition, so it is the condition which must come into existence after the date of the policy. He was, in my opinion, plainly correct so to hold and no one now argues the contrary.
"69. It seems to me to be a short point. I accept the defendants' submission. I accept the submission of the defendants because it seems to me that by doing so I can give some meaning to all the words in that clause. The claimant's interpretation gives the clause a more tautological aspect in as much as it would have the tendency to treat the condition and the physical infirmity or illness as the same thing.
70. In those circumstances, therefore, I am not satisfied that the disablement, albeit being physical infirmity or illness, did not arise directly or indirectly from a condition which first came into existence after 28 July. On that basis, as I indicated at the very outset, the claim fails."
It is common ground that paragraph 70 contains a typographical error in that it has one too many nots. It should read: 'In those circumstances, therefore, I am not satisfied that the disablement, albeit being physical infirmity or illness, arose directly or indirectly from a condition which first came into existence after 28 July. On that basis, as I indicated, the claim fails.'
The Appeal.
(i) The words in the clause should be given the natural and ordinary meaning which the clause would convey to a reasonable person having all the background knowledge which would reasonably have been made available to the parties in the situation in which they were at the time of the contract: see Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896 per Lord Hoffmann pages 912 to 913.
(ii) No special rules of construction apply in relation to insurance policies. Thus in Hayward v Norwich Union Insurance Limited [2001] Lloyd's Rep IR 410 Peter Gibson LJ said at paragraph 16 that:
"...insurance policies are contracts to which the general rules of construction of contracts apply and that the starting point is that words are to be given their ordinary and natural meaning as understood from the background against which the words were used or the meaning which the document would convey to the reasonable man."
(iii) In construing a clause in a contract it is appropriate to have regard to its purpose.
(iv) Where a clause is ambiguous it may be appropriate to have regard to the principle that such a clause should be construed contra proferentem. It is common ground that the proferens here is the respondent.