Folmer v VicSuper Pty Ltd & Anor [2018] NSWSC 1503
Hearing dates:
27 – 28 June 2018
Date of orders:
10 October 2018
Decision date:
10 October 2018
Jurisdiction:
Equity
Before:
Hallen J
Decision:
The Court:
(a) Directs the parties to bring in Short Minutes of Order to give effect to these reasons.
(b) Lists the proceedings for mention for any argument on interest, costs, or other consequential issues, on a date to be arranged at the date of the publication of these reasons.
(c) Grants liberty to apply.
Catchwords:
INSURANCE — TPD insurance — Plaintiff was member of superannuation fund — Trustee of fund (first Defendant) effected Group policy insurance — Insurance policy with Insurer (second Defendant) — Insurance providing benefits upon total and permanent disablement of member — Plaintiff claims she is totally and permanently disabled after being off work for six months — Trustee declined the Plaintiff's claim — Duty on a trustee of a superannuation fund in determining a claim for a total and permanent disablement benefit — Whether Trustee breached obligations to Insured — Plaintiff not pursuing claim against Trustee by end of the hearing, accepting claim against Trustee to be dismissed
INSURANCE — Where contract of insurance — Where Plaintiff claimed that she had suffered total and permanent disablement — Whether totally and permanently disabled benefit payable if Insured proved to the satisfaction of Insurer that she was so incapacitated as to be “unable ever again to work for reward in any business, occupation, or regular duties for which she is reasonably qualified by education, training or experience” — Where insurer denied claim on the basis the claim did not satisfy the definition of TPD — Whether Insurer acted reasonably in considering the claim — Utmost good faith — Whether Insurer breached duty of utmost good faith and fair dealing — Whether Plaintiff totally and permanently disabled within the meaning of the relevant insurance policy — Plaintiff challenges decisions of the Insurer
INSURANCE — Standard of review adopted by Court — Whether Insurer could reasonably have reached the conclusions it did on the evidence available to it — Whether opinion open to Insurer acting reasonably and fairly on the material before it — Whether Plaintiff was totally and permanently disabled at the assessment date
[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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Folmer v VicSuper Pty Ltd [2018] NSWSC 1503
Case
[2018] NSWSC 1503
Decision Date
CaseChat Overview and Summary
Folmer v VicSuper Pty Ltd involved a claim by the plaintiff, a member of a superannuation fund, against the trustee of the fund and the insurer of a group policy. The plaintiff sought benefits under a total and permanent disablement (TPD) insurance policy, arguing she was unable to work due to her disability. The trustee declined her claim, and the plaintiff challenged the decisions of both the trustee and the insurer.
The primary legal issues were whether the trustee breached its obligations in determining the claim for TPD benefits and if the insurer acted reasonably in denying the claim. The court had to consider the definition of total and permanent disablement in the insurance policy and whether the insurer acted with utmost good faith and fair dealing in its assessment.
The court found that the trustee did not breach its obligations in determining the claim, and the plaintiff's claim against the trustee was dismissed as she did not pursue it by the end of the hearing. Regarding the insurer, the court examined whether the insurer could reasonably have reached its conclusions based on the evidence available. The court held that the insurer's decision was open to it, given the material before it, and that the plaintiff was not totally and permanently disabled within the meaning of the policy.
The court did not make any orders against the trustee but dismissed the plaintiff's claim against the trustee. The court found that the insurer acted reasonably and fairly, upholding the denial of the TPD claim.