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CR291 Non-disclosure Complainant’s refusal, after lodging his claim


Complainant’s refusal, after lodging his claim, to consent to the insurer obtaining a report from the specialist who had treated him – office unable to support the complainant.


At all times the complainant held a life policy that also offered sickness benefits. He had previously made a claim, citing depression as the cause, and was duly paid the sickness benefit.

He subsequently applied for and was granted increased benefits, after which he lodged a second claim with the insurer for the sickness benefits, this time citing crack addiction and depression.

In the circumstances the insurer suspected that the depression relied on in the first claim had possibly also been associated, as in the second claim, with crack addiction, and that his failure to disclose such crack addiction when applying for the increased benefits, despite relevant questions in the application form, amounted to a material non-disclosure. To investigate this the insurer required the complainant to furnish a written consent authorising it to obtain from the specialist the report she had prepared when she treated him on the first occasion. The insurer had in fact been furnished with such a consent at the time the complainant made his first claim, but when the insurer approached the specialist with it she refused to furnish her report without a fresh consent.

The complainant refused to furnish a fresh consent, which prevented the insurer from investigating the non-disclosure it suspected. It therefore refused to consider his claim, and the complainant then lodged a complaint with the office.


The policy gave the insurer the right to terminate it and to decline any claim, in addition to certain other relief:
• if it suspected that at the time he applied for the additional benefits the complainant omitted to give full information regarding the state of his health or his past medical history that may materially have affected the insurer’s assessment of the risk, and

• if after informing him of its suspicion and after considering his response it is satisfied that its suspicion is well-founded.
In defending its stance the insurer relied on these provisions.

The complainant persisted in his refusal to furnish a fresh consent, claiming that the information was irrelevant and in any event confidential. The office pointed out to him that the insurer’s suspicion was not unreasonable, that it was hardly allayed by his persistent refusal to furnish a fresh consent, and that in the circumstances the insurer had the right to investigate the possibility of a non-disclosure. We added:

“In this regard (our) office is obliged to accord parties the same rights as they would have had if the complaint had instead been dealt with in a court action, and in a court action the insurer would have had the right to subpoena the specialist and to call her as a witness. Our office does not have the power to issue subpoenas, and in the light of your refusal to furnish a fresh consent you are seeking to deprive the insurer of that right, something which (our) office cannot countenance.”


A final determination was issued in terms of which the complainant was given a further week within which to furnish a fresh consent, and in which the office warned the complainant that a failure to do so would entitle the insurer to take such steps as to the repudiation of the claim, the cancellation of the policy and the limitation of other benefits as the policy or the law justifies. The office did not hear any further from the complainant and closed its file.
October 2009

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