High Court: Insurers must pay out on €100,000 policy after man's death

The High Court has upheld the Financial Services Ombudsman's finding that insurers of a Dublin businessman had failed to prove that on the balance of probabilities he had committed suicide.

As a result of the President of the High Court's Mr Justice Nicholas Kearns' ruling today the insurers Lloyds Ireland Representative Ltd's must pay out the policy worth €100,000.

Company director David Cleary died from the injuries he sustained after he fell down cliffs at Howth Head, near the Baily Lighthouse on April 24, 2004. He had been the holder of an individual accident and illness policy with Lloyds which provided cover up to €100,000.

Lloyds had asked the court to set aside the Ombudsman's finding of October 21, 2009 that a complaint made by David Cleary's widow Bernadine Cleary, Sandymount Row, Dublin 4 against the insurance company following its refusal to pay out on the policy, which did not cover suicide, was substantiated.

In opposing the action the Ombudsman had claimed he was entitled to reach the verdict he had.

Martin Hayden SC for Lloyds that Mr Cleary entered into the policy with Lloyds in January 2004. The policy contained an exclusion clause that stated that the policy did not cover death caused by the holder's suicide. The coroner at Mr Cleary's inquest returned an open verdict.

In 2005 Lloyds informed Mrs Cleary that they were not prepared to accept the claim on the information they were provided with, and would have to investigate it further.

In September 2008 Mr Cleary made a complaint to the Ombudsman against Lloyds over their decision. On October 21st the Ombudsman found that Lloyds had failed to prove on the balance of probabilities, as it was required to do, that Mr Cleary had committed suicide.

The Ombudsman held that the evidence submitted by Lloyds was insufficient to reach a conclusion that Mr Cleary had taken his own life and that Lloyds view that this was a suicide was a "matter of conjecture".

In their appeal Lloyds claimed the Ombudsman failed to take into account the garda log of a call made by Mrs Cleary on the evening of her husband's death. There was an entry in the garda log that stated that Mrs Cleary "got a call from her husband which suggested he was going to harm himself".

Mrs Cleary denies stating that her husband sent a text suggesting he was going to harm. However Counsel said that she had not disclosed the contents of that text. Counsel claimed that in his decision the Ombudsman appears to accept Mrs Cleary's version of events.

Counsel said that the Ombudsman gave no weight to the fact that Mrs Cleary's telephone call was logged as 'priority 1' which is assigned to calls when somebody has gone missing and there is a fear of self harm.

Counsel said that in light of the serious conflict of evidence between the parties, no oral hearing was held by the Ombudsman. It was further claimed that the Ombudsman had placed undue emphasis on the coroner's finding of an open verdict.

Paul Anthony McDermott BL for the Ombudsman denied that his client had given undue weight to some factors and not enough to others. Counsel denied that the Ombudsman had erred by not holding an oral hearing, and said that at no stage did Lloyds request an oral hearing.

Today in dismissing Lloyds's appeal the judge said that he had come to a clear view in the matter which was that the Ombudsman was entitled to make the decision he had which he had, given the evidence before him. In his decision the judge said he could not find anything that merited interfering with the ombudsman's decision.

The judge added that the was not offering a view as to how Mr Cleary died.

The judge added that while there were evidential gaps in the process, Lloyds had failed to seek an oral hearing or bring proceedings aimed at having the contents of the text sent by Mr Cleary to his wife on the day of his death that prompted a call to the Gardaí, which Lloyds had claimed was a vital piece of information, disclosed.