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Ali v Colonial Life Fiji Ltd [2003] FJHC 22; HBC0477d.2001s (1 September 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. 477 OF 2001S

Between:

HAZRAT ALI &
MERESEINI MARICA ALI
Plaintiff

and

COLONIAL FIJI LIFE LIMITED
Defendant

R.P. Singh for the Plaintiffs
Ms. R. Lal for the Defendant

DECISION

In December 1999 the second named Plaintiff took out two insurance policies with the Defendant. The first, 8030040 insured her in the sum of $100,000 against suffering total and permanent disability; the second, 8030562 also insured her against total and permanent disability but in this case in the sum of $50,000.

According to the Statement of Claim in January 2000 the second named Plaintiff began to suffer from paraperisis of both legs. By August 2000 there was total sensory and motor loss in both limbs. The second named Plaintiff was wheelchair bound and has no prospects of improvement.

In March 2000 the Plaintiff claimed $150,000 under the two policies. The Defendant refused to pay. The Plaintiff’s case is that the Defendant is in breach of its contract to pay but the Defendant alleges material non disclosure and misrepresentation.

This is an application by the Plaintiffs’ for summary Judgment under the provisions of RHC O 14.

Mr. Singh submitted that there was no arguable defence to the Plaintiffs’ claim. Ms. Lal however told me that a full inquiry into the source and development of the second Plaintff’s illness was required and that this would involve obtaining full access to the second Plaintiff’s medical records which so far had been withheld.

On the papers before me there is some evidence to suggest that the second named Plaintiff may indeed have suffered some numbness before she took out the two policies. Although the evidence is not at all clear it raises a slight doubt. In my view this is not a case where it is clear that there is no real substantial question to be tried (Codd v. Delap (1905) 92 LT 720). Where there are circumstances which call for close investigation Order 14 is not appropriate (Miles v. Bull [1969] 1 QB 258; [1968] 3 All ER 632).

The Defendant is given unconditional leave to Defend.

M.D. Scott
Judge

September 2002