Asteron Life Limited v Zeiderman - [2004] NSWCA 47

Reported Decision:
59 NSWLR 585
(2004) 13 ANZ Insurance Cases 90-120

Court of Appeal

CITATION: Asteron Life Limited v Zeiderman [2004] NSWCA 47

HEARING DATE(S): 18/02/04

JUDGMENT DATE:
5 March 2004

JUDGMENT OF: Spigelman CJ at 1; Meagher JA at 34; Bergin J at 52

DECISION: 1. Appeal upheld; 2. The judgment of the first instance to be set aside; 3. The Statement of Claim be dismissed; 4. The respondent pay the appellant's costs of the appeal; and 5. The respondent pay the costs of the matter below at first instance.

CATCHWORDS: APPEAL - MEDICAL INSURANCE - HEALTH INSURANCE - STATUTORY INTERPRETATION - INSURANCE CONTRACTS ACT 1984 (CTH) - Dispute on medical insurance policy as to whether the exclusionary provisions refer to the diagnosis or the occurrence of an illness or disability - whether Insurance Contracts Act (particularly s47) over-rides the policy provisions on this issue - Held: Appeal allowed - Insurance Contracts Act (s47) construed in the context of the Act as a whole - the purpose of s47 is to mitigate the effects of certain contractual provisions which seek to avoid liability - reference in the terms of the contract not to pre-contractual pathology, but to post-contractual diagnosis - respondent to pay appellant's costs of both the appeal and the trial at first instance.

LEGISLATION CITED: Insurance Contracts Act 1984 (Cth)
Principles of Insurance Law in Australian & New Zealand, Butterworths, Sydney, 1991

CASES CITED: East End Real Estate Pty Limited v C E Heath Casualty & General Insurance LImited (1991) 25 NSWLR 400 at 403F
Antico v Heath Fielding Australia Pty Ltd (1997) 188 CLR 652 at 668-669
FAI Insurance Co Limited v Australian Hospital Care Pty Ltd (2001) 204 CLR 641
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

PARTIES :
Asteron Life Limited (ABN 64 001 698 228) (Formerly Royal & Sun Alliance Financial Services Limited ABN 64 001 698 228)
v
Daryl Zeiderman

FILE NUMBER(S): CA 40530 of 2003

COUNSEL: A: P Taylor SC
R: D Jackson QC & K Smark

SOLICITORS: A: Abbott Tout
R: Keddies

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3751 of 2001

LOWER COURT
JUDICIAL OFFICER : Rein DCJ

CA 40530 of 2003

SPIGELMAN CJ
MEAGHER JA
BERGIN J
Friday, 5 March 2004

ASTERON LIFE LTD (formerly ROYAL & SUN ALLIANCE FINANCIAL SERVICES LTD) v ZEIDERMAN

FACTS:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 47
Decision Date: 5 March 2004

CaseChat Overview and Summary

Asteron Life Limited appealed to the Court of Appeal of New South Wales against a decision concerning a medical insurance policy. The dispute centred on the interpretation of exclusionary provisions within the policy, specifically whether these exclusions applied to the diagnosis of an illness or disability, or to the actual occurrence of the illness or disability. The appellant argued that the *Insurance Contracts Act 1984* (Cth), particularly section 47, should override the policy's exclusionary terms.

The Court of Appeal was required to determine whether the exclusionary provisions in the insurance contract referred to the pre-contractual diagnosis or the post-contractual diagnosis of an illness or disability. A further key issue was whether section 47 of the *Insurance Contracts Act 1984* (Cth) operated to override the terms of the insurance policy in this regard.

The Court allowed the appeal, holding that section 47 of the *Insurance Contracts Act 1984* (Cth) should be construed in the context of the Act as a whole. The Court reasoned that the purpose of section 47 is to mitigate the effects of contractual provisions that seek to avoid liability. It concluded that the relevant reference in the terms of the contract was not to pre-contractual pathology, but to post-contractual diagnosis. Consequently, the judgment at first instance was set aside, the Statement of Claim was dismissed, and the respondent was ordered to pay the appellant's costs of both the appeal and the trial at first instance.

Orders

Orders of the court

1. Appeal upheld; 2. The judgment of the first instance to be set aside; 3. The Statement of Claim be dismissed; 4. The respondent pay the appellant's costs of the appeal; and 5. The respondent pay the costs of the matter below at first instance.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Asteron Life Limited v Zeiderman [2004] NSWCA 47
HEARING DATE(S):	18/02/04
JUDGMENT DATE:	5 March 2004
JUDGMENT OF:	Spigelman CJ at 1; Meagher JA at 34; Bergin J at 52
DECISION:	1. Appeal upheld; 2. The judgment of the first instance to be set aside; 3. The Statement of Claim be dismissed; 4. The respondent pay the appellant's costs of the appeal; and 5. The respondent pay the costs of the matter below at first instance.
CATCHWORDS:	APPEAL - MEDICAL INSURANCE - HEALTH INSURANCE - STATUTORY INTERPRETATION - INSURANCE CONTRACTS ACT 1984 (CTH) - Dispute on medical insurance policy as to whether the exclusionary provisions refer to the diagnosis or the occurrence of an illness or disability - whether Insurance Contracts Act (particularly s47) over-rides the policy provisions on this issue - Held: Appeal allowed - Insurance Contracts Act (s47) construed in the context of the Act as a whole - the purpose of s47 is to mitigate the effects of certain contractual provisions which seek to avoid liability - reference in the terms of the contract not to pre-contractual pathology, but to post-contractual diagnosis - respondent to pay appellant's costs of both the appeal and the trial at first instance.
LEGISLATION CITED:	Insurance Contracts Act 1984 (Cth) Principles of Insurance Law in Australian & New Zealand, Butterworths, Sydney, 1991
CASES CITED:	East End Real Estate Pty Limited v C E Heath Casualty & General Insurance LImited (1991) 25 NSWLR 400 at 403F Antico v Heath Fielding Australia Pty Ltd (1997) 188 CLR 652 at 668-669 FAI Insurance Co Limited v Australian Hospital Care Pty Ltd (2001) 204 CLR 641 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
PARTIES :	Asteron Life Limited (ABN 64 001 698 228) (Formerly Royal & Sun Alliance Financial Services Limited ABN 64 001 698 228) v Daryl Zeiderman
FILE NUMBER(S):	CA 40530 of 2003
COUNSEL:	A: P Taylor SC R: D Jackson QC & K Smark
SOLICITORS:	A: Abbott Tout R: Keddies

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3751 of 2001
LOWER COURT JUDICIAL OFFICER :	Rein DCJ