In this judgment (dealt with here on material non-disclosure) the second material issue dealt with by the court was whether the insured truthfully represented his medical conditions in relation to his continued ability to work.
The insurer alleged that the insured did not tell either the insurer or the examining doctor that he could perform the full duties of his occupation. Therefore, both the approval of pre-litigation claims and the payment of some of them was induced by fraud.
The insurer’s evidence, however, could not support the claim of fraud, and therefore this allegation was rejected by the court.
The insurer also questioned the validity of the insured’s claim for loss of revenue. The insurer relied on the alleged fraudulent misrepresentation, in that the insured hid his ability to perform the full duties of his occupation (which was held not to have been proved) and not on misrepresentation as to loss of earnings.
The insured was not able to prove any loss of revenue.
The insurer also did not seek an order declaring the policies void in their entirety by reason of the use of “fraudulent means or devices” to make the claims. The claim for fraud was directed at the repayment of claims paid.