Walkom v American Home Assurance

[2006] NSWDC 83

CITATION:	Walkom v American Home Assurance [2006] NSWDC 83
HEARING DATE(S):	24 Aug 06 25 Aug 06
JUDGMENT DATE:	20 October 2006
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Verdict for the defendant with costs.
CATCHWORDS:	Personal accident insurance - false and misleading advertising - belief policy cover was different to what it actually was - what loss was actually sustained
LEGISLATION CITED:	Trade Practices Act 1974 s87(1A), 87(2)
CASES CITED:	Marsh v CGU Insurance Ltd (2004) NTCA 1 Gates v CML Assurance Society Ltd (1986) 160 CLR 1 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
PARTIES:	Denise Walkom American Home Assurance Company
FILE NUMBER(S):	4736/04
COUNSEL:	J Gooley for Pltff R Cheney for Def
SOLICITORS:	Steve Masseleos & Co Lee and Lyons Lawyers

17

IN THE DISTRICT COURT No. 4736/04
OF NEW SOUTH WALES Coram: Judge J S Williams
AT SYDNEY Date: 20th October 2006

BETWEEN:
Denise WALKOM.

Plaintiff

AND:
American Home Assurance Company.

Defendant

JUDGMENT

Amendment of the Statement of Claim

1. There is a preliminary issue in regard to this matter in that the plaintiff sought to amend the already amended Statement of Claim to seek an order under s87(1A) of the Trade Practices Act 1974 varying the contract of insurance such that it responds to a permanent disability rendering the plaintiff unable to perform her usual work at the relevant times.

2. The amendment is opposed for practical reasons, in that the defendant has not had the opportunity of addressing the question that the “Plaintiff suffers a permanent disability rendering her unable to perform her usual work at the relevant time.”

3. The plaintiff’s Statement of Claim is silent as to a permanent disability except that in paragraph 12 it is stated that as a consequence of the injuries referred to in paragraph 11 the plaintiff ceased work on the 8th of February 2001. Further there has never been a suggestion in the plaintiff’s presentation of the case that the policy was specific to her “usual work” as stated in the proposed amendments, as opposed to “any work”, a situation not dissimilar to the problem raised in the facts of Gates-v- CML Assurance Society Ltd [1986] 160 CLR 1.

4. s87(1A) of the Trade Practices Act 1974 enables a court, where a person has suffered damage by conduct in contravention of Part V, to make the orders set out in s87(2) against the person who caused the damage. Those orders include declaring a contract void, varying the contract to operate in the varied way from a specified date, refusing to enforce a contract, an order for the refund of money or property, an order for damages and an order to supply the services contracted for.

5. The order sought by the amendment is in my view too vague and too wide to justify an attempt by me to re-word the policy document to try and comply with the request sought to be pleaded. I have no idea what is contemplated by the expression “respond to a permanent disability” nor am I convinced that any amendment ought be predicated upon a person’s “ability to perform his/her usual work” as opposed to any work in general. Apart from anything else there is no evidence that the plaintiff had any specific intention as to any type of insurance before she was approached by the defendant.

6. Even if I was able to appropriately reformulate the policy to reflect that situation, there would surely have to be a consideration of what an appropriate premium would have been or should be and that taken into account in determining any entitlement of Mrs Walkom.

7. Apart from that, this was a policy of general application to a large number of people who have expressed no concerns either as to its terminology, the cover offered or the premiums payable, and I would have thought to amend one policy out of many thousands of similar policies would create a great unfairness to those other policy holders.

8. In any event, having regard to the general provisions of the Trade Practices Act, I question whether it would be necessary to go down that path, where the alleged “insured event” has come to pass and the plaintiff is making a claim, after the policy has been terminated. If the plaintiff has any entitlements, they would sound in damages, without the need to amend the policy document. Such a course may be necessary where there is some ongoing relationship of a contractual nature between a plaintiff and a defendant but not here. I therefore refuse the amendment sought.

Background

9. Mrs Walkom was a member of the Police Credit Union (PCU) in 1994 when she received a mail out from the PCU advertising benefits to be obtained by taking out a personal accident policy with the American Home Assurance Company (AHA).

10. Mrs Walkom swore four affidavits respectively dated 14th November 2005, 7th April 2006, 23rd May 2006 and 23 June 2006.

11. In the mail out Mrs Walkom says that she received a letter dated 1st of June 1994 (page 6 of Mr Di Giorgio’s affidavit) the documents set out at page 11 of this affidavit, an enrolment form (as per page 12 of Mr Di Giorgio’s affidavit) but nothing else.

12. Mr Di Giorgio, a responsible officer of the American Home Assurance and Ms Inglis, an employee of American Home Assurance gave evidence of the preparation and mailing, via a mailing company, of packets of information that would have included the 1st of June 1994 letter, a brochure as per Exhibit 3 and some other documents Exhibit 4 which are also set out at page 11 of Mr Di Giorgio’s affidavit.

13. Mrs Walkom, acting on the information received, decided to join the scheme and began paying premiums. On the 8th July 1994 she was sent a letter welcoming her to the scheme and enclosing the policy. Again Mrs Walkom says she never received any policy document such as is now Exhibit 2 but she did receive a small cardboard folder Exhibit B containing a certificate of insurance or policy schedule as per Annexure C to Mrs Walkom’s first affidavit. This latter document sets out who is covered, the client number, the policy number, the benefit level, the premiums, the commencement date and date of the first premium.

14. Time went by over which she suffered a number of different injuries leading her to make a claim under the policy in 2003. This claim was rejected and hence these proceedings.

Nature of the claim.

15. Mrs Walkom sues American Home Assurance on the basis of breach of contract and misleading or deceptive conduct under the law and the Trade Practices Act.

The Evidence

16. Contrary to the expansive advertising letter, the policy is extremely limited and in effect only provides a lump sum of $50,000 for death, quadriplegia, paraplegia, total loss of 2 limbs and total loss of sight in both eyes and $25,000 for total loss of 1 limb or total loss of the entire sight in 1 eye.

17. Mrs Walkom says that had she known the limited nature of the policy she would not have entered the scheme.

18. Apart from the introductory material which suggests that this insurance will pay all sorts of bills that occur when a person suffers an injury, the letter of the 1st of June 1994 goes on to say that the PCU Personal Accident Protection Plan through the American Home Assurance Company was “the low cost way to protect your financial burden in the event of accidental injury”.

19. The letter goes on to say “…if an accident happens think how extra cash- up to $100,000 would help you pay the hidden costs and help maintain your lifestyle.”

20. The letter promises that the policy would cover the insured 24 hours a day anywhere in the world.

21. It then suggests that the reader review the enclosed brochure for more details and then choose the appropriate cover that was right for them.

22. The brochure contains similar promises except that it sets out seven situations and the cover that applies to each and four different payments options dependent on the cover chosen. Each of the seven events could only be described as catastrophic. The brochure also says though that if you are laid up without warning because of accidental injury, this policy would cover medical bills, groceries, school fees and mortgage payments and so on up to a limit of either $50,000 or $100,000.

23. Nowhere does the brochure clearly explain that the only cover under the policy is that set out in the table. In fact the table of benefits is not explained at all. It is just placed in the brochure.

24. Even the policy itself is unclear as to the loss covered in respect of hands, feet, fingers and toes and does not, in the schedule of benefits, specifically describe the cover being offered in words that are clear and unambiguous.

25. I am satisfied that the letter of the 1st of July 1994, which has been referred to as the advertisement by the parties and which was drawn up by the American Home Assurance, is quite misleading as to what the policy is said to in fact cover, when in fact the policy did not cover anything like the circumstances referred to in the advertisement.

26. What has happened here, is that for an economically attractive premium, American Home Assurance through the Police Credit Union has offered what appears to be a very attractive proposal to cover persons in difficult situations when in fact the cover offered is one which, for most persons, would never be likely to occur.

27. There is no dispute that Mrs Walkom does not qualify for any of the disabilities set out in the schedule to the policy Exhibit 2. The policy is a lump sum policy, in that there is no provision for the payment of an amount that is a lesser sum than that set out in the schedule for the particular event in question. So that under the policy, a person either gets the amount allocated to the event or nothing.

28. Even the brochure Exhibit 3, which Mrs Walkom says she never received, is quite unclear as to what a person might be entitled to. Having regard to what is said and set out on the inside of the brochure, one could be forgiven for thinking that the policy would cover medical bills, every day expenses such as groceries, school fees and mortgage payments and that if one of the events set out in the schedule occurred, the person would also get the amount allocated to that event.

29. It is perhaps no wonder the premiums were so small given the unlikelihood of the insured events occurring to anyone in the general population.

Receipt of Brochure and Policy.

30. Evidence was given on this issue by both sides. Mrs Walkom is adamant that she didn’t receive either the brochure or the policy. I see no reason to disbelieve her and indeed, the fact that she lodged a claim when she did on the basis of the injuries she had received would tend to the view that until that claim was refused, she was not aware of any limitations to the cover she thought she had. I also struggle to see why anyone would fabricate such an elaborate scheme in order to pursue an elusive legal remedy through the courts.

31. American Home Assurance had a system in place to deal with the initial mail out and the response to the subsequent positive feedback. Their system is unremarkable and cannot be criticised. The initial mail out was called an enrolment list. The response to a positive result was set out in the form of fulfilment list. I accept that these procedures were in place and that the enrolment list should have contained a brochure and the fulfilment list should have contained a policy document. These lists were apparently made up by American Home Assurance and then given to their mailing company to put in envelopes and be mailed out.

32. Mrs Walkom conceded that if she had received the brochure or policy she would have been in no doubt as to the extent and nature of the insurance she was undertaking and would not have undertaken it.

33. Mrs Walkom also conceded that in regard to the two critical groups of correspondence she received from the Police Credit Union and/or American Home Assurance that she did received in the first mail out, four of the five documents and in the second mailing, three of the four documents posted namely the welcome letter of the 8th of July 2004, the policy schedule and a small cardboard folder Exhibit B, although she has since misplaced the letter of the 8th of July 2004. She says she did not receive the policy document Exhibit 2 at this time or thereafter.

34. Evidence was also given by American Home Assurance, (Ms Inglis and Mr Di Georgio) of the fact that they had received no complaints of missing documentation from any of their many mail outs over a considerable period of time. Mrs Walkom swore an affidavit on the 14th of November 2005 and on the 7th April 2006, 23rd of May 2006 and the 23rd of June 2006, none of which were filed until the 21st of August 2006. The affidavit of the 14th of November 2005 sets out a course of correspondence between herself and her solicitors and the American Home Assurance. What is contained in those letters is illuminating on the issue of whether or not Mrs Walkom had a copy of the brochure and/or policy.

35. On the 15th of October 2002 she was sent a claim form for her to complete and an attending doctors statement. These were completed and returned to AHA. They revealed Mrs Walkom had suffered injuries in accidents in 1992, 1994, 1996 and 2001 on 2 occasions. On the 12th of March 2003 American Home assurance arranged for Mrs Walkom to be medically examined. On the 22nd of April 2003 they declined liability under the policy as Mrs Walkom only had 30% permanent loss of the efficient use of the left leg which was half attributable to work injuries in 1992 and 1993 and half to a motor vehicle accident in 1996 aggravating the condition. American Home Assurance quoted and relied on the terms of the policy.

36. On the 15th of May 2003 Mrs Walkom’s solicitor wrote to American Home Assurance seeking a redetermination of the claim because of, amongst other things, “1. Our client entered into a PERSONAL ACCIDENT PROTECTIONS PLAN which was for death and/or disability, not a loss of limb, and 6. Wrong policy and policy definition considered.”

37. In a further letter of the 2nd of June 2003 the following was said

“ Kindly note that our client was insured under a Personal Accident Protection Plan. We are not in possession of alternative policy documents, we are in possession of the policy documents signed by our client.
Kindly provide us with a copy of the policy documents relied upon when making the original determination.
Our client is for disability under her policy of insurance.
We enclose herewith copies of

· Policy Schedule.

· Letters from you dated 8 July 1994 and 10 May 1995.

· Letter from Police Credit Union dated 4 September 2000.

· Personal Accident Protections Plan Enrolment Form, executed 20 June 1994.”

38. There was a response on the 18th of June 2003 again rejecting the claim after reconsideration. On the 8th of July 2003 Mrs Walkom’s solicitor wrote

Kindly advise us why it is so difficult for you to accept that you have assessed our client under an incorrect policy. We have previously advised you that our client is claiming ‘Total and Permanent Disability’ not ‘Permanent Loss of Use of a Limb’.

You have wrongly considered our client’s claim and it appears that you do not wish to rectify this error.

We are instructed to request that you provide a copy of our client’s full policy so that we may commence proceedings in the District Court of NSW.”

39. On the 14th of July 2003 American Home Assurance forwarded a copy of the policy.

40. The defendant argues that having regard to what appears in Mrs Walkom’s first affidavit (paragraph 7) Mrs Walkom must have had access to the brochure at that point of time because some of the wording used does not appear in the advertisement but does appear in the brochure. I do not see this as evidence that Mrs Walkom in fact had the brochure. The expression “for accidental death or serious injury” is a fairly general term of description, that could be gleaned from the advertisement and does not necessarily mean that it was extracted from the brochure. The affidavit was drafted by Mrs Walkom’s solicitors, who by then had access to the actual policy, and I do not see that particular criticism as helping to resolve the issue of whether or not Mrs Walkom got the brochure and/or policy.

41. Indeed the correspondence I just referred to, would seem to suggest that both Mrs Walkom and her solicitors were unaware of what the policy actually contained. That of course does not necessarily mean that Mrs Walkom did not get these documents. She may have received them but misplaced them although she denies that, saying that she kept all her insurance documents in the one folder. She says she in fact has the advertisement letter and made it available to her solicitors and cannot understand why that document was not included in her affidavit. She produced that folder and was not cross-examined on it.

42. However there are a number of concerns revealed by the evidence. The first is that the advertisement referred to an enclosed brochure but although Mrs Walkom received the advertisement letter she made no attempt to get a copy of the brochure which she could have done by ringing a toll free number. Secondly, Mrs Walkom’s claim against the American Home Assurance relates in part to injures she received before the policy came into effect and thus they could hardly be expected to be covered by any policy. Further she suffered additional injury at some date on 1994 and again in 1996 and yet there is no evidence that at either of those times she made any attempt to make a claim under the policy that she thought was in existence.

43. Whilst not completely on all fours, Marsh-v- CGU Insurance Ltd [2004] NTCA 1 is apposite in regard to the issue of the documents in question being received. The significant difference between that case and the present case is that Mrs Walkom denies that she received the relevant documents whereas Mrs Marsh could not recollect one way or the other if the amended policy was included with the renewal notice she said she never received. Additionally Mrs Marsh said that if the amendment had been received she would not have read it and simply would have put it in her files.

44. The defendant also suggests that because the first time Mrs Walkom turned her mind to receiving another document was sometime in 2003, that being nine years after the documents had been sent, her memory is likely to be unreliable given the passage of time and other events. Mrs Walkom said in evidence, when asked why she didn’t chase up the brochure Exhibit 4, that she thought the brochure was constituted by the sample enrolment form and the other documents (annexure 10 of Mr Di Georgio’s affidavit of 16-3-2006). I must say I found that explanation unconvincing. Exhibit 4 is dummy ticket offering a chance to win $1000 if the policy is taken up within a certain time and the sample enrolment form only contains details of premiums. The advertisement letter of the 1st of June 1994 says towards the end “Please take a moment now to review the enclosed brochure for more details. Then select the level of cover that’s right for you and your family.” A fair reading of that sentence could not be satisfied by treating the documents Mrs Walkom said she regarded as the brochure, as being the document referred to in that sentence.

45. Whilst the subsequent welcome or fulfilment letter of the 8th of July 1994 referred to the enclosed policy, I can understand how someone might regard the policy schedule as being the policy referred to in the letter, which is what Mrs Walkom says she thought it was.

46. The defendant however argues that given the evidence as to the preparation and postage of the enrolment list and the fulfilment list, the chances of Mrs Walkom not receiving the brochure and/or the policy in two separate mailings is quite astronomical, especially as there are no recorded complaints from anyone else as to non-receipt of any of the mail out material which involved, according to Mr Di Georgio’s affidavit of the 11th of May 2006, some 26,000 people in each case.

Damages.

47. However, whether or not Mrs Walkom received the brochures and/or the policy and whether or not she was the victim of a misrepresentation, what is the measure of any damage suffered by her.

48. Apart from anything else she has had the benefit of this policy for 9 years, during which American Home Assurance would have been at risk had Mrs Walkom suffered any of the nominated events.

49. But Mrs Walkom says that if she had been aware of the limitations of the policy she would not have insured herself. She has not said that she would have gone elsewhere and obtained a different policy for example. Had she wanted to obtain the type of insurance she wanted, she probably would have been faced with paying a much higher premium. Further, if the policy in fact was one that insured against personal accident expenses, why would Mrs Walkom necessarily be entitled to payment of $50,000 rather than simply reimbursement for expenses incurred, and why weren’t claims made for those earlier accidents?

50. Insurance contracts are somewhat different to other contracts because there is an element of risk involved for both parties. For the insured there is the risk that the insured event will not occur and yet a premium will have been paid and for the insurer the risk is that the event will come to pass and cost the insurer more than the premium that was paid. Of course an insurer offsets that risk by agreeing to insure other persons in similar situations on the basis that with many premiums being paid there is unlikely to be a payment out on each premium. Insurers can of course also re-insure a risk much as a bookmaker lays off a large bet.

51. The factual circumstances in this matter are remarkably similar to the facts in Gates-v- CML Assurance Society Ltd [1986] 160 CLR 1. In that case Mr Gates had a superannuation policy with the Defendant. An agent of the defendant approached him to take out an additional associated total disability insurance for a very low premium. Mr Gates said that the agent falsely represented the effect of the insurance to be a total disability for his employment as a builder when in fact it was for a total disability for any employment. He became disabled to work as a builder but could have done other work and his claim was rejected. The Full Federal Court made findings which the High Court upheld (cf par 16). It found that the premiums were quite small; there was no evidence that the actual cover was worth less than Mr Gates paid; there was no evidence that but for the alleged misleading statements Mr Gates would have cancelled the existing superannuation policy or omitted to acquire the new policy; there was no evidence that cover in the terms of the statements made to him was available from CML or any other insurance company; or as to the premium which would, in such a case, be payable for that cover; or as to Mr Gates' willingness to pay such a premium. If he could and would have entered into the different contract and it would have yielded the benefit claimed, he may have been entitled to damages to place him back in the position he would have been in had it not been for the representations made. The lost benefit was referable to opportunities forgone by reason of reliance on the misrepresentation. It is for the plaintiff to establish that he could and would have entered into the different contract.

52. Applying those propositions to Mrs Walkom in this case, if she were able to establish that but for her reliance on AHA’s representations, she could and would have entered into policies of insurance containing a disability clause of the kind represented by the advertisement, she might then succeed in obtaining an award of damages equal to the benefits that would have been payable under such a policy, less the premiums paid or payable. Neither the fact that the representation induces entry into a contract nor the fact that it is a statement of the benefits to which the plaintiff would be entitled under that contract, is enough to justify compensation for expectation loss.

53. In Marks-v- GIO Australia Holdings Ltd [1998] 196 CLR 494 Justices McHugh, Hayne and Callinan said at paragraph 48 on page 514 “that a party that is misled suffers no prejudice or no disadvantage unless it is shown that the party could have acted in some other way or refrained from acting in some way which would have been of greater benefit or less detriment to it than the course in fact adopted.” They went on to give an example at par 50 which was to the effect that “if a person agrees to pay $50,000 for goods which the vendor falsely represents are worth $100,000 but which are in fact worth $50,000 what loss has the purchaser who is misled suffered by agreeing to buy (assuming no more is known). If a person agrees to pay interest at the rate of 10% for a loan which the lender falsely represents would ordinarily command interest at a rate of 15% but which in fact would ordinarily command interest at 12%, what loss has the borrower who has misled suffered by agreeing to borrow, (again assuming no more is known?)”

53. In the present case the following facts have been established on the balance of probabilities.

1. Around the 1st June 1994 on behalf of PCU, AHA wrote to PCU members offering a type of insurance, said to be reflected in the letter and the enclosed brochure.

2. Mrs Walkom had not at any prior time sought to obtain any such insurance from any provider or anything similar by way of some sort of income protection.

3. Whilst I am satisfied that AHA enclosed a brochure and a policy in it’s respective mail outs in June and July 1994, for some reason Mrs Walkom did not receive them, but also made no enquiry as to them being missing in the mistaken belief that what she received on the two occasions constituted a brochure on the one hand and a policy on the other.

4. Mrs Walkom’s apparent inability to work in 2003 was caused by a combination of accidents that arose in 1993, 1994, 1996, and two in 2001.

5. A medical examination conducted by AHA on the 12 March 2003 found that she had a 30% permanent loss of the efficient use of the left leg which was 15% attributable to work accidents in 1991 and 1993 and 15% attributable to a motor vehicle accident in 1996 aggravating that pre-existing condition. According to Mrs Walkom’s doctors, she has disabilities in both knee joints and legs, and in her low back attributable to a variety of accidents as well as degenerative conditions (see Dr Endrey Walder, Dr Ellis, Dr Wallace, Dr Evans and Dr Sherry). However it is far from clear that Mrs Walkom is totally unfit for any work although the consensus amongst those doctors is that she is unfit to work as a security guard.

6. There is no evidence that had Mrs Walkom become aware that the policy was as it was and not as she thought it was, she would have arranged insurance of that type elsewhere and additionally there is no evidence as to what might be an appropriate premium for such a policy. Indeed Mrs Walkom stated that had she known what the policy in fact was all she would have done is either cancelled it or not taken it out.

7. AHA cannot be criticised for their mailing system or that it was unreasonable for them to assume that all mail-outs contained the brochure and all mail-outs to those who accepted the first offer, would have contained the policy document.

8. Mrs Walkom said that had she received either or both brochure or policy she would have understood the nature of the policy and either not gone ahead at all or cancelled the policy. Although she didn’t receive a brochure she made no attempt to get one, even though the documents that she did get would hardly have constituted a “brochure” in accordance with the commonly understood meaning of that word. Certainly the documents she got, gave no further explanation or details of the policy.

9. Mrs Walkom suffered injury apparently in 1994 and 1996 and yet did nothing about enlivening any rights that she may have had under this policy at those times. That is she did not seek payment of “medical bills and everyday expenses such as groceries, school fees, mortgage payments and so on.”

10. I am satisfied that the letter of the 1st June 1994 was false and misleading a situation that was not completely rectified in the brochure but which would have been plain in the policy, a document that Mrs Walkom said she understood and on which she would have acted to cancel or not go ahead with the policy. Further, AHA made it clear that if, after 14 days the policy was not what was expected, they would cancel the policy and refund the premiums.

54. Not that it has any bearing on the current matter, but the various accidents sustained by Mrs Walkom over the years appear to have been covered by either workers compensation or motor vehicle accident insurance.

Resolution.

55. There are perhaps two issues to be decided;

1. Was there false and misleading conduct on the part of AHA on which the plaintiff Mrs Walkom relied, and

2. If so what damage has Mrs Walkom sustained.

56. As to the first, the plaintiff has conceded that had she had the full documentation from AHA she would not have been misled by the terms of the policy. There is no suggestion that AHA has deliberately sought to withhold that information from Mrs Walkom or indeed anyone else and had the mail outs operated correctly, Mrs Walkom would not have been deceived into acting to purchase a policy. The fault or failure of AHA as far as Mrs Walkom was concerned was not deliberate and seems to have been totally accidental and furthermore also seems to be something that realistically it could do little to have controlled or prevented. The improbability of Mrs Walkom not receiving one or both of the questioned items was extremely high.

57. In those circumstances one might ask was there in effect any misleading conduct when the documentation was looked at as a whole as it was intended to be. Regrettably many people do not read documents carefully and/or do not fully understand the import of them so that it is incumbent on someone like AHA to spell out very clearly and in plain language exactly what is being offered from the very beginning of negotiations and that in my view did not occur here.

58. Against that is Mrs Walkom’s own evidence that she would not have been misled if she had all the documentation so that as far as Mrs Walkom is concerned, while she was actually misled, if she had received all the documentation, she would not have been. Further Mrs Walkom did not take up the offer contained in the letter of the 1st of June 1994 to ring the toll free number of AHA between 9 and 5 Monday to Friday to find out exactly what this policy was intended to do.

59. As to the second point, and more importantly, I am not satisfied that Mrs Walkom has sustained any compensable damage based on my understanding of what the High Court said in Gates. The only damage the plaintiff may have sustained relates to a refund of premiums, but against that Mrs Walkom has had the benefit of that insurance for nine years and had she sustained any of the enabling injuries contained in the policy, then AHA would have been obliged to pay her under the policy. Further there is no evidence to suggest that Mrs Walkom would have gone elsewhere for any insurance of a similar nature. In that regard she was approached by AHA and not the other way around.

60. I am not satisfied that the plaintiff has therefore established any relevant damage and that there should be a verdict for the defendant. I order the plaintiff to pay the defendants costs.

COUNSEL:

Plaintiff: J Gooley

Defendant: R Cheney

SOLICITORS

Plaintiff: Steve Masselos & Co

Defendant: Lee and Lyons Laywers

J S Williams

Judge