CR158 Onus of proof – pre-existing condition


Onus of proof – pre-existing condition


The complainant was covered for permanent disability under a protection plan that was sold to him telephonically on 7 February 2005. The complainant was diagnosed with major depression on approximately 10 February 2005 and instituted a claim. The insurer repudiated it because according to medical evidence the condition claimed for existed prior to the inception of the policy.

The exclusion clause reads as follow:

“The insurer shall not be obliged to make any payment in respect of any condition or event arising directly or indirectly from or traceable to any physical defect or medical condition of which the Life Assured was aware and which had its origin prior to the issue of the policy.”

The attending doctor’s statement states the following:

“When did the symptoms first appear or the accident happen? 2003
Has the patient suffered from the same or similar condition in the past? Yes
If yes, please give details February 2005
Are you aware of any condition … which may have contributed directly or indirectly to the condition above? Clinically depressed since 2003 and psychiatric treatment”

After the insurer repudiated the claim, the complainant provided them with a letter from the attending doctor where he stated the following:

“As gevolg van ‘n misverstand tussen my en die pasiënt wil ek net graag vraag 4 & 6 en 12 regstel. Gemelde pasiënt se simptome het eers gedurende 2005 begin en nie gedurende 2003 soos in gemelde verslag genoem is.”

The medical records from another doctor states the following:

“Date symptoms first started February 2005, had a “collapse” 2003, ?CVA, but NOT anxiety attack.”

The insurer requested clinical notes from the complainant’s treating GP and the abovementioned two doctors. They only received one doctor’s notes.


The normal position is that when an insurer wants to rely on an exclusion clause, the onus is on them to prove that they are entitled to do so and it is for them to obtain the necessary medical evidence they wish to rely on. However, in this instance the complainant’s own doctors’ reports created doubt, and it was our opinion that the insurer was entitled to rely on the exclusion clause until the complainant provided them with medical evidence to the contrary.


The complaint was not upheld.

March 2006