Dew v Suncorp Life and Superannuation Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Dew v Suncorp Life & Superannuation Ltd [2001] QCA 459

PARTIES:

JUDY ANNE DEW
(plaintiff/respondent)
v
SUNCORP LIFE AND SUPERANNUATION LIMITED ACN 073 979 530
(defendant/appellant)

FILE NO/S:

Appeal No 3327 of 2001
SC No 13 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

26 October 2001

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2001

JUDGES:

McMurdo P, McPherson JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Appeal dismissed with costs

CATCHWORDS:

INSURANCE – LIFE INSURANCE – THE CONTRACT – Appeal against judgment in an action in which respondent sued appellant on a policy of life insurance pursuant to which appellant insured respondent against total and permanent disability

APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – THE HEARING OF THE APPEAL – PROOF OF EVIDENCE AND PROCEEDINGS BELOW – whether Trial Judge ought to have accepted expert opinion based upon assumption that respondent suffered certain symptoms – finding of fact that symptoms not suffered before policy signed

INSURANCE – GENERAL – POLICIES OF INSURANCE – MISREPRESENTATION AND NON-DISCLOSURE – DUTY OF DISCLOSURE – whether duty to disclose arose on admitted medical history – whether finding of fact that no duty arose should be disturbed – whether erroneous test applied under s 21(1)(b) Insurance Contracts Act 1984 of how reasonable person would view the matter

Insurance Contracts Act 1984 (Cth), ss 21(1)(a), 21(1)(b)

COUNSEL:

S Keim for the appellant
R Hanson QC for the respondent

SOLICITORS:

Clayton Utz for the appellant
Thompson & Royds for the respondent

1. McMURDO P: I agree with the reasons for judgment of Cullinane J and with the order he proposes.

1. McPHERSON JA: I agree with the reasons for judgment of Cullinane J for dismissing this appeal with costs.

1. CULLINANE J: The appellant appeals against a judgment in favour of the respondent in the sum of $522,000.00.  The judgment was given on 21 March 2001, in an action in which the respondent sued the appellant on a policy of insurance pursuant to which the appellant insured the respondent against total and permanent disability.

1. The issues litigated before the trial judge were whether there was a failure to make disclosure under s 21 of the Insurance Contracts Act 1984 and whether the respondent was guilty of a fraudulent misrepresentation. The latter is not an issue on this appeal.

1. On 13 June 1996, the respondent made application to the applicant for life cover with an extension for total and permanent disability.  She completed a proposal form and underwent a medical examination at the appellant’s request.  At the time of completing the proposal form the appellant’s representative did not require her to answer a number of questions in the form concerning her medical history because of the proposed medical examination.

1. At the time of the medical examination she completed a questionnaire and a form provided by the appellant…