IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0104 OF 1997

BETWEEN:

PARAS RAM
PLAINTIFF

AND:

BLUE SHIELD (PACIFIC) INSURANCE LTD
DEFENDANT

Mr Maopa for the Plaintiff
No appearance for the Defendant

Date of Hearing: 5 September 2005
Date of Judgment: 29 September 2005

JUDGMENT OF FINNIGAN J

This matter came on for hearing on 5 September 2005 by arrangement with Counsel. At the hearing there was no appearance of Counsel for the Defendant and it proceeded by way of formal proof.

I heard the evidence of the Plaintiff only. I am satisfied in June 1995 he purchased a policy of insurance from the Defendant. The cover was to be Defendant’s “Orchid” cover for 24 days from 23 June 1995. He purchased the policy through Argo Travel Ltd which arranged his air travel from Lautoka to Melbourne and back. It is a standard travel insurance cover note called “travel safe”. There is a master policy but the relevant conditions appear to be contained all within the two page document that he was given. 

That document was produced as Exhibit P1. Also produced were Exhibits P2 to P6 which set out all the expenses incurred. Also identify the nature of the Plaintiff’s illness and treatment. Essentially it was “extraction of (ureteric) stone and pyelolithotomy” .

The Plaintiff has claimed all his expenses. Clearly under the contract he cannot have all his expenses as there are limits in the policy. Under the “terms and conditions applying to medical and other expenses cover”, there is a note that hospital room benefit is limited to F$250 per day but this amount is doubled when such charges are inclusive of all medical treatment services. It seems medical treatment services have been charged separately so the limit is F$250 per day. The claim includes a bed fee of AU$5,250.00. I had no evidence from the Plaintiff about how many days he was in hospital it seems he is not entitled to that much.

As well, the first F$30 of each and every claim per person per disability is not insured. That much at least must be deducted.

It seems to me the Defendant is bound only to the maximum provided in the contract and this must be less than the amount stated in the statement of claim. Quantum has to be left for the time being. My concern now is with liability.

Liability turns on construction of words in the contract. These words are as follows:

“The insurance does not cover:

(a)……….
(b) Congenital and Pre-existing conditions.

PLEASE NOTE THAT.

(1). ……
(2)…..
(3)	Pre-existing conditions means disabilities which commenced prior to the date of issue of the insurance certificate. For the purposes of this Travel Insurance Certificate they shall include such of the following conditions - …….Calculi of Kidney, Urethra or Bladder ……..

It is common ground to the parties that in Melbourne during the term of the insurance cover the Plaintiff was surgically treated for a sudden onset of calculi. One doctor refers to it as “a kidney problem which necessitated kidney surgery and admission to hospital” (Exhibit P2). The Defendant’s pleaded defence is that (1) calculi of the kidney and urethra were specifically excluded by the words of the policy and (2) that the Plaintiff’s condition in any event had been a pre-existing condition, “that is to say the presence of stones in the kidney and the ureter constituted pre-existing condition therefore could not have been formed overnight as claimed”.

These are matters of evidence raised by the Defendant and the Defendant took no steps in either the discovery process or the hearing. I am left only with the words of the contract which are set out above.

I find the definition of “pre-existing conditions” is entirely clear. They are “disabilities which commenced prior to the date of issue of the insurance certificate”. In claiming that the Plaintiff’s condition comes within that exclusion the Defendant assumes a positive burden and must establish its claim by evidence. I certainly am unable to assume that this Plaintiff’s condition existed before the date of issue of his cover. His evidence was that he was not aware of any illness inside him when he bought the cover.

I come to the rest of the exclusion. For the purposes of (this contract) pre-existing conditions “shall include such of the following diseases…….. Calculi of Kidney, Urethra or Bladder…….” Without the words “such of” this statement might have meant that Calculi of Kidney Urethra or Bladder were to be excluded without further proof as being presumed pre-existing conditions. I cannot make much sense of the list with those two words included. I have no mandate to leave them out. To leave them out is to negate the definition. The draftsman could have said simply, “pre-existing conditions are/include …..calculi of kidney, urethra or bladder…..” but did not.

Decision

In the event the balance of probabilities established by the evidence favours the Plaintiff and I enter judgment for the Plaintiff in liability. As for quantum, I believe the Counsel for the Parties will be able to reach agreement. There cannot be judgment for the full amount claimed, AU$10,969.65. There must be a deduction of the excess, F$30. The hospital bed cover is limited to F$250 per day for the number of days (unstated in the evidence) in hospital.

Interest is claimed at 13.5% per annum. There is no counter-pleading, but I allow interest at a lower rate, - 6%. Counsel should include this in their calculations.

The Plaintiff is awarded costs which I assess summarily at $300.00.

D.D Finnigan
JUDGE

At Lautoka
29 September 2005