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Bruce Porter Baron v Hartford Fire Insurance Co And Others

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date18 December 1997
Subject MatterCivil Action
Judgement NumberHCA9031/1993
CourtHigh Court (Hong Kong)
HCA009031/1993 BRUCE PORTER BARON v. HARTFORD FIRE INSURANCE CO AND OTHERS

1993, No. A 9031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

________________

BETWEEN
BRUCE PORTER BARON, the Lawful Son and Beneficiary and Personal Representative of the Estates of LAVERNE PORTER BARON and HOWARD MORRIS BARON Plaintiff
AND
HARTFORD FIRE INSURANCE COMPANY 1st Defendant
ILET HENRY FREDRICKS 2nd Defendant
I H. FREDRICKS AND ASSOCIATES LTD 3rd Defendant
INSURANCE COMPANY OF NORTH AMERICA 4th Defendant

________________

Coram: The Hon. Mr. Justice Seagroatt in Court

Dates of Hearing: 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28 November 1997 and 1, 2 December 1997

Date of Delivery of Judgment: 18 December 1997

________________

J U D G M E N T

_______________

The death of Howard Baron

1. On the evening of the 31st December 1972, almost twenty five years ago, Mr. Howard Baron, a 59 years old American businessman, was found shot dead in the office of a business colleague, not far from where he then lived in the Peninsula Court. The single and fatal wound was caused by a bullet fired from a .38 revolver held probably against his chest. The bullet, when recovered, was found to be of a make unknown in Hong Kong. The weapon itself was not found. The office was unlocked when Mr. Baron's body was discovered.

2. An investigation was promptly started by the Police and was not curtailed until 1983. The file remains open. The medical evidence, the circumstances of the death to the extent that they could be ascertained, and what relevant background information existed, led the Coroner's jury to return a verdict of "Homicide by person or persons unknown". The Police's view was, and remains, that Mr. Baron was murdered. One of the issues I have to resolve in this case is whether he was murdered. I do not see how the jury could have come to a conclusion other than the one they reached. I am satisfied beyond reasonable doubt that he was murdered. By whom and for what reason remains a mystery. There was no evidence of any robbery or theft. No one has ever been arrested in connection with the murder. There is simply no evidence against any particular person. It is not however necessary to speculate as to any motivation or potential suspect.

The health and medical history

3. When an autopsy was carried out there was evidence of cancer of the liver. Mr. Baron had made no secret of his state of health over the previous years. He had undergone surgery of the colon in 1967. This seemed to have been successful but it was of course radical surgery. In 1969 he had had aorto-bilateral femoral by-pass graft to deal with occlusive disease of the aorto-iliac artery. Again this seems to have been successful. His doctor in Hong Kong performed the 1967 operation. The 1969 operation was carried out in the U.S.A. Dr. Carey-Hughes, his specialist in Hong Kong, told the Police, in January 1973 that he had diagnosed a lump in his liver about a year or so earlier. That would be late 1971 or early 1972. In July 1972 Dr. Carey-Hughes told Howard Baron that the cancer had developed to the extent that he had about 6 to 12 months to live. Mr. Baron noted this in his diary by entries on the 27th and 28th July 1972.

4. There is a statement in the Police file by a William Gayda, taken by Malaysian Police Officer, who was a friend or acquaintance of Howard Baron. He refers to his being hospitalized for a long time sometime in late 1970 and that he looked after him in the absence of his wife. I am not at all sure that Mr. Gayda is reliable on dates since there is some confusion in his timing of a number of events. However I do not think that that is of any consequence. In 1967 and 1969, he had undergone major surgery, had a history of cancer from 1967 and was in July 1972, five months before his death diagnosed as suffering from terminal cancer.

His business affairs and contacts

5. He appears over the years to have been involved in a wide variety of business activities in South-east Asia. His main aspects seems to have been involvement with the hotel construction and management. His colleagues were themselves involved in diverse enterprises. His source of income seems to have been derived from brokering deals of one form or another. He seems to have conducted his business from a table he customarily used in the lobby of the Peninsula Hotel.

6. It was there that he made contact for the first time with Mr. Ilet Henry Fredricks in late summer or early autumn of 1969. Mr. Fredricks had come to Hong Kong that same year having spent some years in South-east Asia in, predominantly, life assurance. He had also a sideline in Tax consultancy. He was a former practising American Lawyer having graduated in Law in 1950 and practised for the best part of the following decade.

7. Very shortly after their meeting Mr. Fredricks was able to sell him some household and personal effects insurance cover. He also arranged insurance for a boat which was in the course of construction for Mr. Baron. Mr. Fredricks was able to give the precise date of the former, no doubt because he had his file available when Inspector Carroll interviewed him in the former's offices on the 10th January 1973. He was not able to date the latter.

8. Although not referred to in the record of this interview or statement, Mr. Fredricks, in later statements prepared for the purpose of this litigation, and in the course of a telephone conversation with the Plaintiff in 1992, said that he tried to sell Mr. Howard Baron life assurance. Given Mr. Fredricks' experience over the previous decade had been in the life assurance industry, it would have been surprising if he had not done so. Mr. Howard Baron apparently told him he was uninsurable and made some reference to a surgical operation he had undergone. I will return to this aspect a little later because there are conflicting versions from Mr. Fredricks of this exchange and this is of some importance in determining Mr. Fredricks' reliability. What he was able to sell or arrange for him was personal accident insurance through a policy which is at the heart of this action.

P.A. Policy 1862/0037 - Hartford Insurance (AFIA)

9. This policy was taken out on the 25th March 1970 by Howard Baron through Mr. Fredricks. I am satisfied that the policy would not have been issued by Hartford or AFIA, unless it had received a completed and signed declaration or proposal form. For that time cover of US$100,000 was quite high; the premium was US$150. The documentation existing today is very spare. In January 1973 Mr. Fredricks says he had in his file a copy of the declaration form, the policy itself, and copies of all cheques, receipts and endorsements including the Policy schedule of 29th March 1971. I accept his evidence in this regard. He was able to talk from reference to such documents when he was interviewed by the Police. He has no documents at all now. Perhaps this is not surprising in view of the lapse of time between January 1973 and 1990. He had moved office premises at least once in that period.

10. The insurance company no longer has any of the original documents. The Police from their microfiche records have been able to supply some of the documents supplied to them by the insurance company. They certainly had a copy of the policy at some stage supplied by AFIA (see AFIA to Police - 5/1/73 "C" P.70). There is no indication that they were ever supplied with a copy of the declaration form, although in view of their interest in the matter of insurance generally I would have expected them to have asked for a copy. There is a possibility that when AFIA supplied a copy of the policy in response to their request, a copy of the declaration form was attached to it.

11. The declaration form, according to Mr. Fredricks' evidence was signed by Mr. Howard Baron, but he himself wrote in the information and answers required from what Mr. Baron told him. The only guide to what that information and answers were is to be derived from a document which came into existence in March 1971 on the first anniversary of the policy.

12. There is in existence a copy of what is described as a policy schedule of policy 0037 which renewed the original policy 1862. This is an "inhouse" document, i.e. it was prepared in AFIA's offices by its staff. Although its form suggests that it incorporates an application for a policy to be completed and signed by the applicant it is not such a document. It is now one of the few documents in respect of which there is a common understanding. It purports to repeat the information contained in the original declaration form, which is the basis of the policy.

13. It is not clear why this document came into being but it may have been because there was some decision to re-number or re-organise existing policies or even to improve benefits. There was however no change to the policy itself. It is possible that there was some variation in the premium rate. I am satisfied that I can safely draw the inference, on the basis of Mr. George Yau's evidence, that a member of AFIA's staff accurately copied from the original declaration form the answers to questions 7 to 15. The material one for the purposes of this action is question 13 which consists of two parts. It is the health questionnaire. Part (a) is of no consequence. Part (b) asks

"To the best of your knowledge or belief ... during the past five years, been disabled or suffered from any disease or received medical or surgical treatment or advice?"

A cross was entered in the "No" box. By reason of the details of Mr. Howard Baron's health prior to 1970 this was a wholly inaccurate negative answer. Both operations were well-within the 5 year period....

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