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Fenton v AIA Australia Ltd

Fenton v AIA Australia Ltd

Case [2017] VSCA 331 17 November 2017

Total Disability Benefit

Partial Disability Benefit

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0074

AMANDA FENTON	Applicant
v
AIA AUSTRALIA LTD (formerly AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LTD)	Respondent

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JUDGES:	TATE, OSBORN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 October 2017
DATE OF JUDGMENT:	17 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 331
JUDGMENT APPEALED FROM:	[2017] VCC 438 (Judge Kings)

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INSURANCE – Disability income insurance policy – Total disability policy – Total disablement benefit – Partial disablement benefit – Sickness – Whether insured, solely due to sickness, unable to perform one or more duties of occupation important in producing income – Whether judge erred in not accepting that applicant, solely due to sickness, was unable to perform one or more duties of her occupation important to producing income- No error established – Application for leave to appeal refused.

APPEAL – Application for leave to appeal – Applicant’s proceeding dependent upon credibility and reliability of applicant’s evidence – Advantages enjoyed by trial judge – Judge’s findings not glaringly improbable or contrary to compelling inferences – Different case advanced by applicant on appeal from case advanced at trial – Applicant not permitted to advance new case which could possibly have been met by further evidence at trial – Whisprun v Dixon (2003) 77 ALJR 1598 referred to.

WORDS AND PHRASES – Sickness – Totally disabled – Partially disabled – Unable to perform one or more duties of occupation important in producing income.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P B Murdoch QC with Mr A M Donald	Slater & Gordon
For the Respondent	Mr J J Gleeson QC with Mr D Christie	Moray & Agnew

TATE JA
OSBORN JA
BEACH JA:

On 25 February 2009, the applicant, Ms Amanda Fenton, entered into a Priority Protection Disability Income Policy (‘the policy’) with the respondent, AIA Australia Ltd. The policy provided for the payment of monthly disability benefits if the applicant suffered total disablement or partial disablement within the meaning of the policy.

On 20 October 2009, while the applicant was on holiday in Cuba, she ate a toxic piece of fish and became ill. Subsequently, the applicant travelled to New York where, on 4 November 2009, she was diagnosed as suffering from ciguatera poisoning.

On 21 December 2009, the applicant completed a disability income claim form under the policy. In January 2010, the applicant’s claim was accepted by the respondent. The respondent commenced to make payments, pursuant to the terms of the policy, on 20 January 2010, following the end of the waiting period provided for by the terms of the policy. Payments were made thereafter on the basis that the applicant was totally disabled from 20 January 2010 until 6 September 2014.

On 6 September 2014, the respondent reduced the applicant’s monthly disability payments by 30 per cent. In doing so, the respondent purported to invoke the partial disablement provisions of the policy, in reliance upon the opinion of a specialist in occupational medicine, Dr Mary Wyatt,…

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.

Continue reading Fenton v AIA Australia Ltd

Details

AGLC: Fenton v AIA Australia Ltd [2017] VSCA 331
Case: [2017] VSCA 331
Decision Date: 17 November 2017

CaseChat Overview and Summary

The case of Fenton v AIA Australia Ltd involved a dispute between the applicant, Fenton, and the respondent, AIA Australia Ltd, regarding the interpretation and application of a disability income insurance policy. The matter was heard in the Supreme Court of Queensland. The applicant, who was a policyholder under a disability income insurance policy with the respondent, sought a declaration that she was entitled to a total disablement benefit, as well as a partial disablement benefit, due to her inability to perform certain duties of her occupation.

The primary legal issue before the court was whether the applicant, solely due to sickness, was unable to perform one or more duties of her occupation that were important in producing income, thereby qualifying her for the total or partial disablement benefits under the policy. Additionally, the court had to consider whether the judge had erred in not accepting the applicant's evidence that she was solely due to sickness unable to perform the relevant duties.

In determining the appeal, the court found that the judge's findings were not glaringly improbable or contrary to compelling inferences. The advantages enjoyed by the trial judge in assessing the credibility of the applicant's evidence were considered, as well as the fact that the case advanced on appeal differed from the case presented at trial. The court held that the applicant was not permitted to advance a new case on appeal, which could have been met by further evidence at trial. The decision in Whisprun v Dixon (2003) 77 ALJR 1598 was referenced to support this finding. Consequently, the application for leave to appeal was refused, and no error was established in the original decision.

Orders