Whitlam v. Hazel

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Mark Whitlam v Andrew Hazel (for Lloyd's Syndicate 260 t/a KGM Motor Policies at Lloyd's)
English Court of Appeal: Auld, May and Scott Baker LJJ.: 2 December 2004
John Norman, instructed by Barlow Lyde & Gilbert, for the appellant insured
Winston Hunter QC and Michael Rawlinson, instructed by Silverbeck Rymer, for the respondent insurers
In this case, the insured's broker made some slight alterations to the description of the insured's occupation in the proposal form. As a result, there was no mention of the fact that, in addition to his full-time job, the insured was training to be a golf professional. The Court of Appeal upheld the High Court's decision that insurers were entitled to avoid the policy for non-disclosure

DMC Category Rating: Confirmed

This case note is based on an Article in the December 2004 Edition of the ‘Bulletin’, published by the Marine and Insurance teams at the international firm of lawyers, DLA Piper Rudnick Gray Cary, which is an International Contributor to this website

In 1997, the insured, Mark Whitlam, signed up to the Professional Golf Association's training programme to become a professional golfer. The course requirements included working in a golf club or shop, playing in four or five tournaments a year and attending an annual one-week residential course. Both before and after joining the course, the insured worked six days a week as an assistant in a shop connected with a nine-hole golf course. He played in tournaments in his own time, either on his day off or by taking a day's holiday, and attended the residential course as unpaid leave.

On 28 January 2000, he was driving home from a residential course when he was involved in an accident as he pulled out from a lay-by. Two other motorists collided and one of them was killed. The insured was prosecuted for careless driving but was acquitted.

The insurer sought to avoid the motor policy for material non-disclosure. It said the insured had not disclosed that he was a trainee golf professional.

The problem lay in the answers given to certain questions in the proposal form. The insured completed a hand-written form on 16 April 1999 and gave it to his broker. The broker prepared a printed version, got the insured to sign it and then submitted it to the insurer on 20 April. This printed version formed the basis of the insurance contract.

The broker had, however, made a number of alterations to the information given by the insured. In particular, the form asked questions about the insured's employment. This was stated as "employed". In the box entitled "Occupation and nature of business - both full and part-time", the broker had inserted "shop assistant retailing". In the next box, headed "Employer and business address" he printed "Worthing Road Horsham".

In his handwritten version of the proposal form, the insured had described his occupation as "shop assistant retail", but in the second box, he had written "Neil Burke - Horsham Golf + Fitness Worthing Road". As a result of the broker's alteration, however, the proposal form made no mention of the insured's connection with golf.

The insurer took a very restrictive approach to the categories of occupation and business for which it would provide motor cover. It would only cover insureds in occupations that were considered low risk. This enabled it to provide a competitive premium.

When assessing proposals for insurance, the insurer used software produced by the Association of British Insurers that sets out standard codes for categories of business, occupation and employment. The insurer had specified which of these was acceptable and which not. If an occupation, whether full or part-time, or an employer's business, was unacceptable, no quotation would be supplied. Amongst those on the blacklist were sportsman, professional sports person, sports coach, golfer and golf club professional.

As a result, had the proposal form said "trainee golf professional" it would have been rejected. In fact, had the word "golf" appeared anywhere on the printed form it would have been rejected.

At first instance, the judge found that the insurer had been entitled to avoid the policy on the grounds of material non-disclosure. There was no question of any deceit on the part of the insured and any non-disclosure was entirely innocent. But his true occupation was, nevertheless, as a trainee professional golfer and, had this been disclosed on the proposal form, the insurer would not have agreed to provide cover.

The Court of Appeal agreed with the judge at first instance. It was not possible to sever the golf element of the insured's occupation from that of working in the shop. The shop was part of the golf club premises and sold golf equipment. If someone had asked the insured "What do you do?" his likely answer would have been "I am a trainee golf professional" rather than "I am a shop assistant". The question on the proposal form about the insured's occupation and nature of business was not limited to paid employment. The insurer was interested in the whole picture of what the insured was doing, not just the part for which he was paid. The insured's occupation was material to the motor insurance because experience had shown that some occupations carried a significantly higher risk of losses than others.

In this case, the insured had given an incomplete and misleading answer to the questions in the form, although he did not do so deliberately. Accordingly, the court held that the insurer was entitled to avoid the policy.



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