Mahadeo v Dial Direct Insurance Limited (06/3536) [2007] ZAGPHC 305; 2008 (4) SA 80 (W); [2008] 2 All SA 352 (W) (1 February 2007)

IN THE HIGH COURT OF

SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO: 06/3536

In the matter between:

NIRESH MAHADEO Plaintiff

and

DIAL DIRECT INSURANCE LIMITED Defendant

J U D G M E N T

BORUCHOWITZ, J:

[1] The plaintiff sues the defendant for indemnification under a policy of insurance. In terms of the policy the defendant undertook, with effect from 1 March 2005, to indemnify the plaintiff against the loss of or damage to a 2003 model Audi A4 1.8 Turbo motor vehicle.

The said vehicle was damaged in a collision which occurred during the currency of the policy, but the defendant has refused to indemnify the plaintiff in respect of such damage.

[2] The defendant has sought to justify its repudiation of the plaintiff’s claim on the ground that at the time of the conclusion of the contract of insurance the plaintiff had been guilty of a material misrepresentation or non-disclosure. The defence is pleaded as follows:

‘8.2 Without limiting the generality of the aforegoing the Defendant pleads as follows:

At the time of the conclusion of the policy, the Plaintiff omitted to inform the Defendant that he had previously suffered a loss on or about 24th of January 2003;

On the strength of the aforegoing non-disclosure, the Plaintiff was allocated a six year no claim bonus;

Had the Plaintiff revealed the loss he would been allocated a two year no claim bonus;

The non-disclosure was material in the assessment of the risk and the calculation of the premium;

The Defendant has accordingly suffered prejudice in the acceptance of the risk and/or premium prejudice.

In the premises, as it was entitled to, the Defendant has avoided the motor section of the policy, and has refunded all premiums paid on account of the policy in respect of the vehicle.

Alternatively to the aforegoing:

At the time of the execution of the agreement, Plaintiff was aware, and Defendant unaware, of a previous claim submitted by Plaintiff consequential upon Plaintiff’s vehicle careering into a pothole in January 2003;

As a result of the collision, Plaintiff’s vehicle was damaged;

Plaintiff failed to disclose the aforegoing to the Defendant;

The misrepresentation ( alternatively non-disclosure) was material, constituting information which ought to have been disclosed by the Plaintiff in order to enable the Defendant to form its own view as to the effect of such information on the assessment of the risk, under the policy;

In the premises Defendant, as it was entitled to, has avoided the motor section of the policy, and refunded all premiums paid on account of the policy in respect of the vehicle.

Alternatively to the aforegoing and only in the event that the Court finds that the Defendant was not entitled to avoid the agreement of insurance, the Defendant pleads as follows:

In terms of the policy the Plaintiff was obliged to furnish the Defendant with true and complete information;

A breach of the aforegoing term by the Plaintiff will entitle the Defendant to reject cover;

The Plaintiff failed to furnish the Defendant with true and complete information;

In the premises Defendant, as it was entitled to, rejected cover.’

[3] It is common cause that during January 2003 the plaintiff had driven the vehicle into a pothole causing minor damage thereto, and that consequent thereon he had submitted a claim to his previous insurers and had received payment. These facts were not disclosed to the defendant. What is not common cause is whether the pothole incident and subsequent claim occurred on or about 24 January 2003 as alleged by the defendant.

[4] A further non-disclosure contended for, during the course of argument, related to a claim allegedly submitted by the plaintiff’s wife. As this was not specifically raised as a defence in the defendant’s plea I need say nothing further in regard thereto.

[5] The circumstances giving rise to the conclusion of the policy can be briefly stated. The proposal for insurance was made telephonically.

On 19 January 2005 the plaintiff responded to the defendant’s advertisement on the internet whereafter he was telephoned by a consultant representing the defendant one Tshali Tsanwani. The plaintiff and Tsanwani had a lengthy telephone discussion during which various aspects of the proposed insurance were discussed. Agreement was eventually reached on the nature and extent of the proposed insurance and the premium to be charged. Insurance cover was to be provided with effect from 1 March 2005. The policy documentation, which comprised a schedule embodying the applicable terms and conditions, was sent by the defendant to the plaintiff some one and a half weeks after the telephone conversation.

[6] A transcript of the telephone conversation between the plaintiff and its sales consultant was introduced in evidence and forms an integral part of the defendant’s case.

[7] The dispute between the parties centres around the materiality of the answers given by the plaintiff to two questions posed by the defendant’s consultant during the sales conversation, both of which relate to the claims history of the plaintiff. The first question arose during the following exchange between the plaintiff and the defendant’s sales consultant:

‘Consultant: Okay and how long have you had uninterrupted comprehensive insurance? Any insurance company, your insurance history is what I am trying to get to here.

Mr Mahadeo: Say again Sir.

Consultant: Comprehensive insurance, right.

Mr Mahadeo: I’ve had it since I’ve had cars.

Consultant: Perfect, so when did you start driving?

Mr Mahadeo: 98.

Consultant: Okay and any accidents or stolen car claims?

Mr Mahadeo: No.

Consultant: So since January 98 you were driving insured car?

Mr Mahadeo: Not January 98. It was July-June, June 98.

Consultant: June 98 you were driving insured cars, right?

Mr Mahadeo: That’s correct.

(Long silence)

Consultant: Okay just hold on for me please.

Mr Mahadeo: Sure.

Consultant: Any, any – Okay you said no claims at all. Based on this information very nice insurance history therefore you will now be looking at a very nice discount as well …’

[8] The second question arose during the following discussion between the plaintiff and the consultant:

‘Consultant: Any licence endorsement in the last five years?

Consultant: Alright cancellation of insurance …

Mr Mahadeo: Inaudible

Consultant: Okay and claims in the last two years at all.

Mr Mahadeo: No.’

[9] The defendant called only one witness Mr Stephan Olivier, a Loss Adjusting Manager employed by the defendant’s agent, Telesure Group Services (Pty) Ltd. Olivier, was not qualified as an expert in the insurance industry and was not led as such. He sought to explain why the defendant regarded the non-disclosure of the pothole incident and insurance claim arising therefrom as material fact. Olivier testified that had the incident been disclosed the plaintiff would have qualified for a two year no claims bonus and not the six years no claims bonus that was awarded to him. Nor would the plaintiff have qualified for the premium that he did. Had the defendant been informed of the previous claim, a ‘red flag’ would immediately have been raised and the matter would have been referred to senior management in order to enable them to make a decision as to conditions under which the defendant was prepared to underwrite the risk.

[10] In cross-examination Olivier was referred to the schedule in which the following endorsement appears: ‘Claims submitted/losses suffered in the past two years for the regular driver and spouse: None declared.’ Olivier conceded that the aforesaid wording created the impression that all that the defendant considered material were claims and losses for the two years preceding receipt of the schedule. Olivier further conceded that on a proper reading of the transcript, the sales consultant did not specifically ask the plaintiff about all of his previous claims or losses but appears to have restricted the questioning to claims resulting from accidents and theft. Olivier explained that the sales consultant had deviated from the computer-generated questionnaire when he did not ask the plaintiff about any previous claims or losses.

[11] The plaintiff testified that when asked by the sales consultant as to whether he had had any ‘accidents or stolen car claims’ he did not mention the pothole incident as he did not consider same to be an accident. To his mind an accident involved a collision of some sort either between two vehicles or a vehicle and an object. He did not consider the minor damage that had been sustained after his vehicle rolled into a pothole to be an accident as there was no collision of any sort. So far as the second question was concerned, this too he believed referred to accident or stolen car claims. At no stage during the conversation was he asked whether he had any previous claims or losses and nor was he informed that he qualified for a 6 year no claim bonus based on a claim free history. Had he been aware of this he would have disclosed the pothole incident.

[12] The plaintiff further testified that he could not recall the exact date of the pothole incident. To the best of his recollection it occurred during the first half that is the second or third week of January 2003.

[13] I turn now to a consideration of the relevant legal principles. An insurer has the right to avoid a contract of insurance not only if the proposer has misrepresented a material fact but also if he has failed to disclose one. The burden of proving materiality is on the party alleging the misrepresentation or non-disclosure. (Fransba Vervoer (Edms) Bpk v Incorporated General Insurances Ltd 1976 (4) SA 970 (W) 977 (C); Clifford v Commercial Union Insurance Co of SA Ltd [1998] ZASCA 37; 1998 (4) SA 150 (SCA) at 156E.)

[14] The test for materiality where non-disclosure is relied on is well-established. In Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419 (A) at 435F-I it was held that the test is an objective one in which the matter is viewed through the lens of a reasonable person as opposed to the reasonable proposer or reasonable insurer. This was described by Joubert JA writing for the majority as follows at 435F-I:

‘It is implicit in the Roman-Dutch authorities and also in accordance with general principles of our law that the Court applies the reasonable man test by deciding upon a consideration of the relevant facts of the particular case whether or not the undisclosed information or facts are reasonably relative to the risk or the assessment of the premiums. If the answer is in the affirmative, the undisclosed information or facts are material. The Court personifies the hypothetical diligens paterfamilias i.e. the reasonable man or the average prudent person (Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) at 410H-411D). The Court does not in applying this test judge the issue of materiality from the point of view of a reasonable insurer. Nor is it judged from the point of view of a reasonable insured. The Court judges it objectively from the point of view of the average prudent person or reasonable man. This reasonable man test is fair and just to both insurer and insured inasmuch as it does not give preference to one of them over the other. Both of them are treated on a par.’

[15] The test was put somewhat differently by Van Heerden JA in President Versekeringsmaatskappy Bpk v Trust Bank van Afrika Bpk en ‘n Ander 1989 (1) SA 208 (A) at 216F:

‘… Anders gestel, is die toets of die redelike man sou geoordeel het dat die inligting oorgedra moes word sodat die voornemende versekeraar self tot ‘n besluit kan kom. En so ‘n oordeel sou hy bereik het indien die inligting na sy mening die voornemende versekeraar redelikerwyse kon beïnvloed het.’

See also Commercial Union Insurance Co of SA Ltd v Lotter [1998] ZASCA 103; 1999 (2) SA 147 (SCA) at 154B (per Farlam AJA as he then was).

[16] Different tests have been applied in the case of positive misrepresentations. Until the enactment of section 63(3) of the Insurance Act 27 of 1943 our courts followed the English rule that an insurer can rescind an insurance contract if the insurer made an incorrect but non-material representation where its correctness was warranted. The section was introduced in order to mitigate the effect of the rule which often operated unfairly against insured persons. In terms of the section an insurer could only escape liability if the false representation made to it was ‘of such a nature as to have been likely to have materially affected the assessment of the risk’ under the policy. The provision was not well formulated and led to difficulties. See in this regard Qilingele v South African Mutual Life Assurance Society 1993 (1) SA 69 (A) where it was decided that the wording of the said section required that one had to look at the position of the particular insurer in determining whether a positive representation was material in the sense required by the Act. The decision in Qilingele’s case was criticised by Schutz JA in Clifford v Commercial Union Insurance Co of SA Ltd (supra) at 156-9. Section 63(3) was re-enacted and replaced with minor modifications by section 53 of Act 53 of 1998. It was last amended on 23 July 2003 in terms of the Insurance Amendment Act, 17 of 2003 is currently worded as follows:

’53. Misrepresentation and failure to disclose material information. – (1) (a) Notwithstanding anything to the contrary contained in a short-term policy, whether entered into before or after the commencement of this Act, but subject to subsection (2) –

the policy shall not be invalidated;

the obligation of the short-term insurer thereunder shall not be excluded or limited; and

the obligations of the policyholder shall not be increased,

on account of any representation made to the insurer which is not true, or failure to disclose information, whether or not the representation or disclosure has been warranted to be true and correct, unless the representation or non-disclosure is such as to be likely to have materially affected the assessment of the risk under the policy concerned at the time of its issue or at the time of any renewal or variation thereof.

(b) The representation or non-disclosure shall be regarded as material if a reasonable, prudent person would consider that the particular information constituting the representation or which was not disclosed, as the case may be, should have been correctly disclosed to the short-term insurer so that the insurer could form its own view as to the effect of such information on the assessment of the relevant risk.

(2) …’

[17] The effect of the most recent amendment is to bring the law with regard to positive representations into line with the law on non-disclosures. The statutory definition of materiality in section 53(b) is effectively identical to that adopted in the President Versekeringsmaatskappy case (supra) in relation to the common law position. The test remains objective: The question whether the particular information ought to have been disclosed is judged not from the point of view of the insurer, or the insured, but from the point of view of the notional reasonable and prudent person. The subjective test propounded in the Qilingele case would appear to no longer apply. See in this regard the discussion by Prof Sutherland in Annual Survey of SA Law (2003) at pp 629-630.

[18] Thus, the test in respect of both positive and negative misrepresentations is not whether the reasonable person would have disclosed the fact in question, but whether the reasonable person would have considered that fact reasonably relevant to the risk and its assessment by an insurer.

[19] The reasonable man’s assessment of whether a fact is material will often be influenced by the specific questions which the insurer may ask of the proposer for insurance, and what the insured considers to be relevant will often depend upon the nature of the questions asked in the proposal form, or as in the present case during the sales conversation. The nature of the questions posed may lead to the conclusion that a reasonable person would not have regarded certain facts as material. The questions put by an insurer may therefore enlarge or limit a proposer’s duty of disclosure and depending on the circumstances, serve to define the limits of what is material. In certain instances the nature and range of questions may constitute a waiver on the part of the insurer of its right to receive information about particular material facts. See in this regard A A Mutual Life Assurance Association Ltd v Singh [1991] ZASCA 67; 1991 (3) SA 514 (A) at 520J-521F; Cronje v A A Lewens 1989 (4) SA 818 (W); Fouché v Corporation of London Assurance 1931 WLD at 159-160.

[20] It was rightly submitted on behalf of the defendant that in general an insured’s claims history is relevant to the assessment of the risk. Materiality relates both to the acceptance of the risk and to the determination of the premium at which the risk will be accepted. Defendant’s counsel submitted, on the basis of Olivier’s evidence, that the previous claim would have been relevant at least in regard to the determination of the premium or the conditions under which the defendant was prepared to accept the risk. His evidence to the effect that the defendant had a particular approach to the risks of the kind in question were relevant considerations. Counsel for the defendant also submitted that on the face of it there was a positive misrepresentation, as opposed to non-disclosure, and that the proper approach to be followed is that stated by Kriegler AJA (as he then was) in the Qilingele case at 75A-D. In assessing materiality the evidence that the insurer had a particular approach to the risks of the kind in question would be relevant.

[21] Plaintiff’s counsel submitted that the defendant’s reliance on the evidence of Olivier to the effect that the defendant would have ‘red flagged’ the proposal if the pothole incident had been disclosed was misconceived. The issue is not the defendant’s policies and procedures in relation to the assessment of the risk but whether the reasonable man in the position of the plaintiff would have thought that the pothole incident may have an impact on an insurer’s assessment of the risk. I agree with this submission.

The defendant’s subjective views and its own internal practices are irrelevant, the essential question is whether the reasonable man would have considered them to be relevant. Whether the reasonable man would have considered all claims for the preceding six years to be relevant depends on the questions asked of the plaintiff in the sales conversation. It is of significance that at no stage during the sales conversation was the plaintiff informed that he would be entitled to a six year no claims bonus based on a claims free history, and nor was he asked to disclose all of his previous claims of whatever nature. Because of the manner in which the questions were posed to the plaintiff the notional reasonable man would not, in my view, have known that the defendant considered material all claims and losses or any prior claims during the previous six year period. At best for the defendant the questions would have led a reasonable man to conclude that was material were any claims involving accidents or theft and any claims for a period of two years prior to the date of the sales conversation.

[22] The defendant’s purported reliance on the Qilingele case is in my view misplaced. As I have indicated the effect of the recent amendment to section 53 of the Short-Term Insurance Act has brought the law relating to positive misrepresentations into line with the law on non-disclosures. Both positive and negative misrepresentations are to be treated on the basis of the reasonable-person test postulated in the Oudtshoorn Municipality and President Versekeringsmaatskappy cases and in determining materiality emphasis is not to be placed on the subjective views or practices of the insurer.

[23] The present case is clearly an instance where a reasonable man’s assessment of whether a fact was material or not would have been influenced by the specific questions which the insurer asked during the proposal for insurance. Early in the sales conversation, the consultant stated: ‘Okay, before we continue I’m gonna confirm all this information relevant to your cover alright.’ The impression was created that all the information considered to be material would be dealt with in the ensuing questions.

[24] The plaintiff’s contention that he did not consider the pothole incident to be an accident cannot in my view be rejected as false or improbable. His interpretation of the word ‘accident’ as entailing some type of a collision is an eminently reasonable one. One would not in everyday parlance, state that you had ‘collided’ with a pothole. The word ‘accident’ does not necessarily encompass the pothole incident. It has various shades of meaning and is imprecise. See for example Sikweyiya v Aegis Insurance Co Ltd 1995 (4) SA 143 (ECD) at 146I-147B and cases their cited.

[25] There is also no reason to reject the plaintiff’s evidence that he understood the second question as a reference to accident or theft claims. There is no indication in the conversation that the word ‘claims’ bore a different meaning to that used earlier in relation to the first question. As I have already pointed out the defendant at no stage asked the plaintiff about all claims or losses but restricted the question to claims resulting from accidents and theft without further clarification. The defendant’s witness Olivier conceded that the sales consultant deviated from the computer-generated questionnaire when he did not ask the plaintiff about all or any previous claims. The second question must be viewed in the context of the conversation as a whole.

The second question is reasonably open to the interpretation that it referred to the same type of claims namely (accident and stolen car claims) which were referred to earlier in the sales conversation.

[26] The plaintiff cannot be faulted or criticised for the manner in which he understood the questions posed by the defendant’s sales consultant. The first and second questions were not fully explained and one cannot ignore the fact that the answers were given during the course of a telephone conversation where the plaintiff had no time to analyse or reflect on the meaning of the words used. He was called upon to provide off the cuff answers to questions of which the relevance was not made clear. The plaintiff had no opportunity to review the questions and answers after the event to check whether the answers provided were correct. The manner in which the contract was concluded gave rise to a heightened risk of ambiguity. The plaintiff was not assisted by an insurance broker. Given the ambiguity and context in which the questions were asked the plaintiff cannot be held responsible for the interpretations placed by him on the nature of the questions put. As stated by Stratford JA in British America Assurance Co v Cash Wholesale 1932 AD 70 at 74:

‘Now the questions are framed by the insurance company and it is its duty to make them clear and unambiguous especially when it attaches so much importance to the truth, and such dire consequences to the untruth, of the answers. If, then, the question is capable of two reasonable meanings, that which is the more favourable to the insured will be accepted by a court of law when the truth of his answer is assailed.’

This dictum is in my view of relevant application to the facts of the present matter.

[27] For these reasons I am of the view that a notional reasonable person in the position of the plaintiff would not have disclosed the pothole incident and claim arising therefrom to the defendant.

[28] If I am incorrect in regard to the view that I have taken as to the meaning and effect of the second question posed it would then become necessary to enquire whether the pothole incident or previous loss in fact occurred on 24 January 2003 as alleged by the defendant. The second question becomes relevant only if it is accepted that the previous claim occurred within two years of the date of the sales conversation. If it did not, the reasonable man would not have considered such claim to be discloseable.

[29] It was submitted on behalf of the plaintiff that the defendant had not proven that the previous claim occurred within two years of the question being posed. The defendant had adduced no evidence to prove that the previous loss occurred on the date in question or any other specific date during January 2003.

[30] The plaintiff, in his evidence stated that he could not recall the exact date of the pothole incident and that to the best of his recollection it occurred during the first half of, that is the second or third week of January 2003. It was not suggested to the plaintiff in cross-examination that his evidence to the effect that he could not remember the exact date was false. The plaintiff was merely asked in cross-examination whether he would concede that the incident occurred on 24 January 2003, if the defendant called direct evidence to prove this date. The plaintiff declined to make this concession. Notwithstanding the intimation that such direct evidence was available to the defendant, the latter elected to call no evidence to support this allegation.

[31] It was submitted by counsel for the defendant that the plaintiff was disingenuous in that knowing that the date of the pothole incident was in issue he took no steps to ascertain the correct date. His failure to do so led to the irresistible inference that the collision occurred on this date. I do not agree with the defendant’s contention. The defendant and not the plaintiff bore the onus of adducing evidence that the previous loss occurred on 24 January 2003. There is simply no evidence before the court to support the defendant’s pleaded statement that the incident occurred on that date. There is no indication in the pleadings on what this date is based. I agree with the plaintiff’s submission that this is not a situation where the court is asked to choose between two conflicting factual versions and to infer that the one is more probable than the other. The defendant has elected to put up no factual version as to when in January 2003 the incident took place. The onus was on the defendant to prove the date and there was no obligation on the plaintiff to search for, or to lead evidence as to the date of the pothole incident. If anything, a negative inference must be drawn from the defendant’s failure to lead any evidence in this regard.

[32] As a last resort the defendant sought to rely upon a purported informal admission contained in correspondence between the plaintiff and the defendant and the insurance Ombudsman. It is common cause that subsequent to the defendant’s repudiation the plaintiff was invited to make representations to it and to the Ombudsman concerning the defendant’s decision to repudiate the claim. In letters sent by the plaintiff it would appear that he admitted the defendant’s assertion that the pothole incident occurred on 24 January 2003.

[33] The purported admissions cannot in my view avail the defendant. The plaintiff had consistently stated in the correspondence and in evidence that he had no knowledge of the exact date of the incident. He used the date 24 January 2003 for the purposes of his representations to the defendant and the Ombudsman because he assumed that the defendant must have had some basis for stating that this was the date of the previous incident. This appears to have been an incorrect assumption on the part of the plaintiff as the defendant has failed to adduce any evidence regarding this date.

[34] I agree with the plaintiff’s submission that before this correspondence can be treated as an admission of the date, the court must be satisfied that the purported admission discloses an intention to affirm or acknowledge the existence of a fact. See in this regard the decision of the High Court of Australia, Lustre Hosiery Ltd v York [1935] HCA 71; (1935) 54 CLR 134, which was referred to with approval in S v Naidoo 1985 (2) SA 32 (N) at 36H-37D. The correspondence clearly does not reflect such an intention. The intention was simply to convey the plaintiff’s arguments, if the date relied upon by the defendant was used. As pointed out by Thirion J in Naidoo’s case (at 36H) a clear distinction has to be drawn between the admissibility of the admission and its probative value or weight. Its weight must depend on the circumstances under which it is made and in particular the source from which the admission is derived and confidence upon which the maker of the admission has in its reliability. The purported admissions have in my view little probative weight. An examination of both letters makes it plain that the date of 24 January 2003 was the date conveyed to the plaintiff by the defendant and in respect of which he had no personal knowledge. The plaintiff made his representations regarding the defendant’s decision to repudiate the claim on the basis of the defendant’s apparent substantiated contention that the incident had occurred on the date in question.

[35] In my view the defendant has not established that the pothole incident or the insurance claim arising therefrom occurred on 24 January 2003 or within two years of the date of the sales conversation.

[36] For these reasons I am of the view that the defendant has failed to establish the defences of misrepresentation and/or non-disclosure contended for in its plea and the plaintiff is accordingly entitled to be indemnified in terms of the policy of insurance. The quantum of the plaintiff’s claim has been agreed in the sum of R182 289,85 and the date of lodgement of the plaintiff’s claim was 20 June 2005.

[37] Judgment is accordingly entered against the defendant in favour of the plaintiff for:

Payment of the sum of R182 289,85.

Interest on the said sum at the rate of 15,5% per annum from 20 June 2005 to date of payment.

Costs of suit.

_____

P BORUCHOWITZ

JUDGE OF THE HIGH COURT

COUNSEL FOR PLAINTIFF ADV A DE KOK

INSTRUCTED

BY LOGAN NAIDOO ATTORNEY

COUNSEL

FOR DEFENDANT ADV M M SEGAL

INSTRUCTED

BY WHALLEY VAN DER LITH

DATE OF HEARING 11 MAY 2007

DATE OF JUDGMENT 1 FEBRUARY 2007

IN THE HIGH COURT OF SOUTH AFRICA

DIAL DIRECT INSURANCE LIMITED Defendant

BORUCHOWITZ J:

SUMMARY: Applicable Legal Principles – Duty of disclosure – Action for indemnification under insurance policy providing comprehensive cover for motor vehicle – Whether failure to disclose a previous claim sufficiently material to avoid liability – Proposal for insurance conducted telephonically – Reasonable man’s assessment whether a fact material influenced by the specific questions asked of the proposer for insurance – Manner in which questions put giving rise to ambiguity - Meaning most favourable to the insured accepted – Previous claim held not to be disclosable.