Ellis v TAL Life Ltd

[2019] NSWDC 259

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ellis v TAL Life Ltd [2019] NSWDC 259
Hearing dates:	31 May 2019
Date of orders:	14 June 2019
Decision date:	14 June 2019
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Verdict and judgment for the Plaintiff.
Catchwords:	INSURANCE – medical catastrophe benefit – interpretation of life threatening non-cancerous tumour in the brain – assessment of whole person impairment – whether both physical and psychiatric conditions go to such an assessment
Legislation Cited:	Insurance Contracts Act 1984 (Cth) s 57
Cases Cited:	Ashmere Cove Pty Ltd v Beekink [2009] FCA 564 Comcare v Amorbieta [1996] FCA 312 Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Tower Australia v Farkas [2005] NSWCA 363
Texts Cited:	N/A
Category:	Principal judgment
Parties:	Rodney Graeme Ellis (Plaintiff) TAL Life Ltd (Defendant)
Representation:	Counsel: Mr R.Cavanagh SC with Mr T.Willis (for the Plaintiff) Mr W. Reynolds (for the Defendant)   Solicitors: Somerville Laundry Lomax HWL Ebsworths
File Number(s):	18/96600
Publication restriction:	N/A

Judgment

1. This is a case where a the Plaintiff policy holder Mr Ellis unsuccessfully claimed on an major catastrophe insurance policy with the Defendant consequent to contracting a benign brain tumour. Although the Defendant accepts that the Plaintiff does indeed have a benign brain tumour that is seriously debilitating, it denies indemnity asserting that this particular tumour does not fit within the policy definition benign brain tumour

FACTS

The Policy

2. The Plaintiff held a Silver Trauma Diagnosis Insurance Policy with Lumley Life Ltd which was replaced by the Lumley Life Platinum Partner Insurance Portfolio – Medical Catastrophe Insurance Policy which took effect on 12 May 1997 (the ‘policy’).

3. In 2000 Lumley Life Ltd merged with Prefsure Ltd. On 2 April 2007, Tower Australia Ltd (Tower) acquired the assets and liabilities of Prefsure Ltd and in October 2011 Tower became the current named Defendant. [1]

   1. Exhibit 3

4. The relevant policy provided for a “medical catastrophe benefit” on the occurrence of events specified in the policy. Specifically, cl c(1) stated:

We will pay the medical catastrophe benefit if:

(a) Life insured suffers a medical catastrophe while covered for the medical catastrophe benefit and for the policy anniversary immediately before he or she attains the age of 70;

(b) He or she survives for at least 14 days after the happening of the medical catastrophe.

5. Amongst the conditions covered by the medical catastrophe benefit were benign brain tumour. [2]

   2. Exhibit A, p 31.

6. “Benign brain tumour” was defined as follows:

Benign brain tumour means a life threatening non-cancerous tumour in the brain which gives rise to characteristic symptoms of intracranial pressure such as papilledema, mental symptoms, seizures and sensory impairment resulting in at least 25% of the whole person function. The presence of the underlying tumour must be confirmed by image studies such as CT scan or MRI (magnetic resonance imaging). Excluded are acoustic neuromas, cysts, granulomas and malformations in or of the arteries or veins of the brain, haematomas and tumours on the…