Walton v Airtours Plc, Court of Appeal - Queen's Bench Division, January 16, 2002, [2002] EWHC 712 (QB)

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Walton v Airtours Plc, Court of Appeal - Queen's Bench Division, January 16, 2002, [2002] EWHC 712 (QB)

01/TLQ/0304

Neutral Citation Number: [2002] EWHC 712 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

84 Fieldhouse

London

Date: Wednesday, 16th January 2002

B e f o r e :

HIS HONOUR JUDGE RICH QC

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WALTON

Claimant

- v -

AIRTOURS Plc

Defendant

- v-

SUNLIFE ASSURANCE COMPANY OF CANADA

Part 20 Defendant

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(Tape Transcript by Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0207-404 1400 Fax No: 0207-404 1424

Official Shorthand Writers to the Court)

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MISS R DOWNING (instructed by A J Hows & Co) appeared on behalf of the Claimant

MR N GRUNDY (instructed by Addleshaw Booth) appeared on behalf of the Defendant

MR J BELLAMY (instructed by Penningtons) appeared on behalf of the Part 20 Defendant

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J U D G M E N T

HIS HONOUR JUDGE RICH QC: I think it is fair to the claimant to say that I am about to deliver my reasons for judgment in favour of his claim.

The claimant was employed by the defendant as an airline pilot. In September 1995 he became ill and, as is common ground, became unable to continue his occupation as an airline pilot. His illness has been diagnosed, and this again is common ground, as Chronic Fatigue Syndrome (CFS), which gives him the physical symptoms which a Dr Bowden, to whom I will return, summarised as including "general tiredness and weakness aggravated by physical activity, non-restorative sleep and night sweats." He has not worked since September 1995. Fortunately, the terms of the claimant's employment included the benefit of a total disability insurance policy, which the defendant had negotiated with SunLife of Canada, to whom I will refer as "the insurer". This entitled him to full benefit defined as 75 per cent of his assurable earnings, less State benefit, during any period of incapacity. Incapacity is defined in relation to a member of the scheme such as the claimant, who is a flight deck employee, as follows:

"A condition whereby that member is totally unable, by reason of injury or illness, to follow the member's own occupation and is not following any other. If incapacity should persist for 24 months, incapacity should be deemed to continue only if the member is unable to follow any occupation."

By clause 4.2 of the policy, benefit is to cease on whichever of the following events in respect of the member first occurs: (a) cessation of employment as the employee; or (b) cessation of incapacity; or (c) death; or (d) the occurrence of cessation age, which in the claimant's case was the age 60. The claimant was born on 1st April 1949 and so is now 52 years old.

Benefit was duly paid during the first two years of his becoming unable to work as an airline pilot, and indeed on a ex gratia basis until 31st December 1997. On 9th October 1997, however, he was examined at the insurer's request by Dr Bowden, who reported:

"Examining Mr Walton I can find no underlying physical cause for his persist...

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