Glenys Anne Syred (As Administratrix of the Estate of Gary Vernon Syred) v BGC (Australia) Pty Ltd
[2005] WASCA 224
•23 NOVEMBER 2005
GLENYS ANNE SYRED (As Administratrix of the Estate of GARY VERNON SYRED) -v- BGC (AUSTRALIA) PTY LTD [2005] WASCA 224
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 224 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:80/2004 | 12 AUGUST 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA MILLER AJA | 23/11/05 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GLENYS ANNE SYRED (As Administratrix of the Estate of GARY VERNON SYRED) BGC (AUSTRALIA) PTY LTD (ACN 005 736 005) |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | Glenys Anne Syred (As Administratrix of the Estate of Gary Vernon Syred) v BGC (Australia) Pty Ltd [2004] WASC 87 Hill v Van Erp (1997) 188 CLR 159 Perre v Apand Pty Ltd (1999) 198 CLR 180 Uzabeaga v Town of Cottesloe (2004) Aust Torts Reports 81-739 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2003) 216 CLR 515 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GLENYS ANNE SYRED (As Administratrix of the Estate of GARY VERNON SYRED) -v- BGC (AUSTRALIA) PTY LTD [2005] WASCA 224 CORAM : WHEELER JA
- ROBERTS-SMITH JA
MILLER AJA
- Appellant
AND
BGC (AUSTRALIA) PTY LTD (ACN 005 736 005)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : PULLIN J
Citation : GLENYS ANNE SYRED (As Administratrix of the Estate of GARY VERNON SYRED) -v- BGC (AUSTRALIA) PTY LTD [2004] WASC 87
(Page 2)
Catchwords:
Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M L Bennett
Respondent : Mr S J Davis
Solicitors:
Appellant : Bennett & Co
Respondent : Greenland Brooksby
Case(s) referred to in judgment(s):
Glenys Anne Syred (As Administratrix of the Estate of Gary Vernon Syred) v BGC (Australia) Pty Ltd [2004] WASC 87
Case(s) also cited:
Hill v Van Erp (1997) 188 CLR 159
Perre v Apand Pty Ltd (1999) 198 CLR 180
Uzabeaga v Town of Cottesloe (2004) Aust Torts Reports 81-739
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2003) 216 CLR 515
Wyong Shire Council v Shirt (1980) 146 CLR 40
(Page 3)
1 JUDGMENT OF THE COURT: Subject to an issue relating to the form of the leaflet given to Mr Syred, the relevant facts are set out in the reasons of Pullin J (Glenys Anne Syred (As Administratrix of the Estate of Gary Vernon Syred) v BGC (Australia) Pty Ltd [2004] WASC 87) at [1] - [12] in terms which we accept. There is no need to repeat them. The issues arising on this appeal are relatively confined, and are largely the same issues as those which were before Pullin J. We therefore do not set out again the issues, or the discussion of the law, which is contained in his Honour's reasons, which should be read together with these reasons.
The leaflet issue
2 This is the subject of proposed amended ground of appeal 1A, which is in the following terms:
"1A. The learned trial Judge erred in fact in finding (in its absence of evidence to support such finding) that the document described as 'the leaflet' given to Mr Syred by the Respondent included in it the sentence:
'Please contact the Fund on (08) 9426 7700 within 60 days of your termination if you wish to keep up this cover'.
in that:
1A.1 the telephone number within the substance was the number for William M Mercer Pty Ltd and not Sedgwicks Noble Lowndes Pty Ltd.
1A.2 the exhibit tendered by the witness Booth as Exhibit E did not contain the sentence but contained (at page 412 of the Appeal Book) the balance of the clause.
1A.3 the evidence of Booth (at Appeal Book pages 112-113) was that he photocopied Exhibit E and gave it to Mr Syred.
1A.4 In so far as the Respondent contends that the leaflet given to Mr Syred contained that sentence the Respondent did not discharge the onus of proof."
(Page 4)
3 The application for amendment is opposed by the respondent, or alternatively, as we understand it, the respondent submits that the appellant should be required to elect between the proposed 1A and the existing grounds 1.1 and 1.2. We do not see why the appellant should be required to elect, and we would allow the amendment. The amendment is to reflect an issue which arose during the course of the trial, but perhaps became more clearly defined during the course of the appeal. It arose in this way.
4 His Honour accepted the evidence of Mr Booth, that he gave a photocopy of a leaflet about the fund to Mr Syred. That was a finding of fact plainly open to his Honour, and is not challenged on appeal. However, there is an issue as to what precisely the leaflet may have said. That issue arose in this way.
5 Interrogatories administered by the appellant annexed a version of the leaflet (the "Mercer" leaflet), which apparently had no page 8 and had a duplicated page 7. The respondent said that this was not the version of the leaflet provided to Mr Syred. A Mr Dearson, who had worked first for Sedgwicks and then with Mercer, produced a complete version of a leaflet. His Honour's finding at [12] was that a perusal of the complete version of the leaflet and of that produced by Mr Booth (with two page 7s and no page 8) showed that the only difference, apart from missing pages, was a reference to the name of the administrator. His Honour found that Mr Syred was given a complete copy of the leaflet, similar to that produced by Mr Booth, but with the only difference being the administrator referred to as Sedgwicks rather than Mercer in the copy given to Mr Syred.
6 The difficulty with this finding is that the two leaflets are not precisely identical, apart from the name of the administrator, even if comparison is confined to the relevant differences. In our view, it is by no means clear that the passage which Pullin J quoted at [15] of his Honour's reasons was identical in both leaflets. A sentence which appears in the Mercer leaflet, but which may not have appeared in the Sedgwicks leaflet, was the final sentence quoted in that paragraph being, "Please contact the Fund on … within 60 days of your termination if you wish to take up this cover". The appellant asserts that this is of significance, because Mr Syred died 58 days after he had left the employment, at a time when his insurance cover had ceased (it being common ground that it continued for 30 days after termination, if no further action by the member was taken), but within the period during which he had the option of continuing the cover by payment of premiums at a different, and increased, rate.
(Page 5)
7 In our view, however, even if ground 1A is accepted, the appellant's position is not improved. If Mr Syred did not have a version of the leaflet containing that sentence, it would follow that he had available a leaflet advising that it was open to him to obtain a continuation of his death cover, but which did not indicate anything about when he should do so, although it did contain (on a different page) a contact telephone number. Those facts, together with the fact that he made no inquiry at all on the subject, would amply justify his Honour's findings in relation to causation. That is, his Honour's conclusion would be, if anything, reinforced by the absence of the final sentence quoted.
8 The original grounds 1.1 and 1.2 assert that his Honour should have found that the leaflet (accepting it to contain all the material quoted at [15]) conveyed to a lay person that death cover continued for a period of 60 days. We are in agreement with his Honour's conclusion, at [18] and [19] of his reasons, for the reasons which his Honour gives, that the leaflet in the form quoted at [15] does make it clear that some action from the former employee is necessary if insurance cover is to be continued; it does not suggest that insurance only finally terminates at the conclusion of the 60-day period. Even if it could be read in that way, there is nothing to indicate that Mr Syred held the belief that his cover continued for 60 days. It would not be consistent with his Honour's findings on causation to find that Mr Syred only refrained from initiating inquiries directed at taking up this cover because he believed that he was still covered. Grounds 1.1 and 1.2 are not made out.
Other findings of fact
9 Grounds 1.3 and 1.4 challenge his Honour's findings that Mr Syred was a beneficiary of the policy and was in as good a position as the defendant, and in legal terms better placed, to obtain information about it; instead, it is said that his Honour should have found that Masan Pty Ltd was the beneficiary of the policy. It is not, in our view, necessary to consider whether on a proper construction of the policy and the trust deed, there was an error by his Honour of the kind alleged. His Honour found at [28] that if Mr Syred had contacted the fund administrator, he would have been provided with information; that under cl 1.19.1 of the trust deed, the trustee was authorised to provide information to him; and that under s 101 of the Superannuation Industry (Supervision) Act 1993 (WA), Masan Pty Ltd was required to take steps to ensure that a person such as Mr Syred could make inquiries about the operation of the fund. Further, as his Honour noted at [30], many ex-employees did in fact contact the administrator of the fund after their employment had ceased. Those
(Page 6)
- findings, in our view, amply justify his Honour's conclusion, which these grounds indirectly challenge, that Mr Syred was not in the required sense "vulnerable" so as to give rise to a duty on the part of the respondent to avoid negligently causing him economic loss.
10 Grounds 1.5 and 1.6 assert that his Honour erred in finding that Mr Syred's life insurance policies only provided cover of about $67,000, and that alternatively his Honour should have held that Mr Syred had death cover pursuant to the AMP policy in issue in these proceedings. In our view, those grounds simply misunderstand the point of his Honour's findings in relation to this question. At the point at which his Honour referred to the life insurance policy of $67,000, he was analysing the situation as it would have seemed to Mr Syred and to those advising him, in the absence of the policy in dispute in these proceedings, so as to assist him in making findings about what Mr Syred would have done in particular circumstances. In our view, that consideration was relevant and that analysis was correct.
11 Grounds 1.7, 1.8 and 1.9 are all concerned with his Honour's finding that even if Mr Syred had been told about the option of continuing with cover with AMP immediately after he left employment, he would not have taken steps to exercise it. We acknowledge that there was evidence which could have led to a conclusion different from that reached by his Honour. Broadly, that was that Mr Syred's wife was concerned about his lack of insurance cover, and that Mrs Stiles, who advised Mr and Mrs Syred generally about their affairs, would have advised him to take up that cover as a stop-gap measure (that is, pending a full investigation into what was the most appropriate cover available to him), had she known about it. Those were considerations which were before his Honour.
12 On the other hand, as his Honour found, Mr Syred apparently was not prompt in dealing with paperwork given to him at the commencement of his employment and, although the need for more cover was discussed in July 1999 between Mr and Mrs Syred, no cover had actually been obtained by October 1999. His Honour found that "the easiest course" for Mr Syred would have been to ask Mrs Stiles to obtain a quote and to make a brief visit for a medical examination. The appellant challenges this finding, pointing out that it would have been still easier for Mr Syred simply to fill out a form and not undergo a medical examination, as the insurance in issue here would have required. However, what it seems to us his Honour meant was that even if Mr Syred had taken out the cover in issue here in order to obtain the most suitable cover, he still ultimately
(Page 7)
- would have had to obtain a quote, fill out further forms, and undergo a medical examination so that there would be some duplication of steps. In a context where Mr Syred apparently dealt promptly with business, but not with personal paperwork, it would have been "easier" only to deal with the death cover question once.
13 Mr Syred was a fit and very active man of only 36 years of age at the relevant time (although a heavy smoker) and, as his Honour pointed out in the discussion of the insurance cover already mentioned in relation to ground 1.5, he had inadequate death cover apparently for a considerable period of time. Further, although it was Mrs Stiles' evidence that he always discussed significant financial matters with her, he had not discussed with her the possibility of continuing the death cover available to him when his employment terminated, notwithstanding his Honour's finding that Mr Syred had been given a copy of the relevant leaflet. In those circumstances, we are not persuaded that his Honour erred in making the findings which he did.
Vulnerability and foreseeability
14 Ground 2 asserts that his Honour erred in finding as a matter of fact and law that there was no duty imposed upon the defendant to give "appropriate and timely information to the fund administration concerning members of the fund leaving employment". His Honour's findings in relation to both vulnerability and foreseeability are attacked.
15 Turning to the foreseeability question first, as a practical matter, once the respondent had given notification to the fund administrator that a member had left employment, the fund administrator would write to the member with a statement of the member's position, and would refer to the option to continue the death cover. It is in that sense foreseeable that if the employer does not advise the fund administrator, the fund administrator will not write in a way that reminds the employee of the option to continue the death cover. His Honour appears to have accepted that proposition. However, the thrust of the ground in relation to foreseeability is based upon an assertion that his Honour's interpretation of the information memorandum was incorrect. For the reasons we have already given, we do not accept that premise.
16 So far as vulnerability is concerned, his Honour's findings that Mr Syred was not vulnerable in any relevant sense are challenged for a variety of reasons. A number of them appear to revolve around an inequality of economic power between the respondent and Mr Syred, but we do not see how this is relevant in the present case; there was no
(Page 8)
- relevant economic transaction between the two. There is said to have been an assumption of responsibility by the respondent because the respondent makes payments from the member's salary, and it is asserted that the respondent offered to be the "liaison" between members and the fund. However, the evidence in relation to this, in our view, goes no further than demonstrating that, had Mr Syred wished to make inquiries about the fund so far as it concerned him, he might have been able to do so by consulting the respondent. There is nothing in the materials before his Honour which suggests that the respondent undertook, or would have been understood by Mr Syred as having undertaken, to keep him informed as to the state of the fund so far as it concerned him, or to take on his behalf any action which it was necessary to take in order to ensure that he obtained the greatest possible benefit from the fund. In our view, for the reasons which his Honour gave, Mr Syred was not relevantly a vulnerable person.
17 Ground 3 asserts that there are alternative findings which his Honour should have made in lieu of those challenged by grounds 1 and 2. Since we do not accept that grounds 1 and 2 are made out, it is not necessary to deal with it.
18 We would therefore dismiss the appeal.
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