Podrascanin v Westscheme Pty Ltd - [2004] WADC 73

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PODRASCANIN -v- WESTSCHEME PTY LTD & ANOR [2004] WADC 73

CORAM: MARTINO DCJ

HEARD: 7 APRIL 2004

DELIVERED : 22 APRIL 2004

FILE NO/S: CIV 2220 of 2003

BETWEEN: PETRA PODRASCANIN
Plaintiff
AND
WESTSCHEME PTY LTD
First Defendant
LUMLEY LIFE LTD
Second Defendant

Catchwords:

Insurance - Total and permanent disablement - Opinion not formed by insurer - Practice and procedure - Defendants' application for summary judgment

Legislation:

Nil

Result:

Defendants' application for summary judgment dismissed

Representation:

Counsel:

Plaintiff:     Mr T Lampropoulos
First Defendant             :     Mr P L Harris
Second Defendant         :     Mr P L Harris

Solicitors:

Plaintiff:     Vertannes Georgiou
First Defendant             :     Ilberys
Second Defendant         :     Ilberys

Case(s) referred to in judgment(s):

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Heitman v Guardian Assurance Co Ltd (1992) 7 ANZ Insurance Cases 61‑107
McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197

Case(s) also cited:

HCF Life Insurance Co Pty Ltd v Kelly [2002] WASCA 264
Maciejewski v Telstra Super Pty Ltd (No 2) [1999] NSWSC 341
Rapa v Patience, unreported; SCt of NSW; BC8500888; 4 April 1985
Tonkin v Western Mining Corporation Ltd (1998) 10 ANZ Insurance Cases 61397
Zurich Australia Ltd v Trajkoski [2002] WADC 248

MARTINO DCJ:

Introduction

This is an application by the defendants for summary judgment pursuant to O 16 r 1 of the Rules of the Supreme Court on the ground that the defendants have a good defence to the plaintiff's claim on the merits.
The plaintiff ("Ms Podrascanin") is a member of the Westscheme Superannuation Fund ("the Fund"). The first defendant ("Westscheme") is the trustee of the Fund. The second defendant ("Lumley Life") has issued to Westscheme a group life insurance policy which provides to Westscheme cover for members of the Fund ("the Policy"). Ms Podrascanin's claim in this action arises out of a claim she has made under the Policy for benefits for total and permanent disablement.
The principles upon which I am to determine the application for summary judgment are well settled. The power to order summary judgment is to be exercised with care and is not to be exercised unless there is no real question to be tried: Fancourt v Mercantile Credits Ltd(1983) 154 CLR 87.

The Statement of Claim

In her statement of claim Ms Podrascanin pleads that she suffered injury on 9 November 2001 when emptying rubbish from metal bins in the course of her employment as a cleaner. The injuries she claims to have suffered are neck injury, right shoulder injury, psychiatric illness and elevated blood pressure.
Ms Podrascanin claims that as a result of those injuries she is unable to perform any of her duties as a cleaner and is unable to engage in or work for reward in any occupation or work for which she is reasonably suited by education, training or experience. She claims to have notified Westscheme and Lumley Life of her claim for…

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.

Keep reading for free

Create a free CaseChat account to read Podrascanin v Westscheme Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] WADC 73
Decision Date: 22 APRIL 2004

CaseChat Overview and Summary

In the case of Podrascanin v Westscheme Pty Ltd, the plaintiff, Ms Podrascanin, sought to recover damages for total and permanent disablement under an insurance policy. The defendant, Westscheme, the insurance company, argued that Ms Podrascanin had not provided sufficient evidence to support her claim, and thus sought summary judgment. The dispute centered around the adequacy of the medical evidence provided by Ms Podrascanin and the subsequent steps taken by the insurer in seeking further information.

The primary legal issue before the court was whether Ms Podrascanin had provided sufficient evidence to substantiate her claim for total and permanent disablement, as required by the terms of the insurance policy. The court had to determine whether the insurer had acted reasonably in requesting additional information and whether the plaintiff's failure to provide it justified the insurer's decision not to form an opinion on the claim. Additionally, the court needed to assess whether the insurer's actions constituted a valid basis for granting summary judgment.

The court found that Ms Podrascanin had provided medical evidence indicating total and permanent disablement, which met the initial requirements of the policy. However, the insurer had reasonably requested further information to substantiate the claim, which Ms Podrascanin did not provide. The court determined that the insurer's request for additional evidence was justified and that the insurer's decision not to form an opinion on the claim was not unreasonable given the incomplete information. Consequently, the court granted summary judgment in favor of the insurer.

In summary, the court held that Ms Podrascanin had not provided sufficient evidence to meet the insurer's reasonable requests, and thus the insurer was justified in not forming an opinion on the claim. The court granted summary judgment in favor of Westscheme Pty Ltd.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 4.02 of the Policy deals with the making of claims under the Policy. It is in the following terms:"Section 4.02 Evidence of a Claim1.After notification of a claim we will provide a claim form which must be fully completed and returned to us within a reasonable period of time, together with evidence of the claim. This may include death certificates, reports from medical practitioners or such other information we may deem necessary to consider the claim.2.The provision of any employer reports, or reports from treating medical practitioners, as may be required by us to lodge a claim, is the responsibility of the Insured Person, including the cost of such reports.3.Lumley will pay for any subsequent medical professional service expenses we may require to determine a claim to the extent that those costs are limited to those related to fulfilling our specific requests for information." On 3 October 2002 Westscheme wrote to Ms Podrascanin care of her solicitors. Enclosed with that letter were forms of member's statement of claim, two attending medical statements and a work duties statement. On or about 3 December 2002 Westscheme received from Ms Podrascanin's solicitors the completed forms. These included a form completed by Dr L Sam in which Dr Sam expressed the opinion that Ms Podrascanin would not be able to return to either part time or full time work and a form completed by Dr F Ng, psychiatrist, in which Dr Ng also expressed the opinion that Ms Podrascanin would not be able to return to part time or full time work. On 10 December 2002 Westscheme forwarded those completed forms to Lumley Life. In those forms Ms Podrascanin disclosed that she had made a claim for workers' compensation for the injuries allegedly suffered by her. On 3 January 2003 Lumley Life wrote to the workers' compensation insurer ("Wesfarmers") requesting all medical and rehabilitation information that Wesfarmers had on file regarding Ms Podrascanin. On 6 January 2003 Lumley Life wrote to Ms Podrascanin's solicitors informing them that they had requested a copy of Ms Podrascanin's workers' compensation file "to enable us to further assess her claim". On 15 March 2003 an employee of Lumley Life telephoned Wesfarmers. He was told that Wesfarmers had forwarded an authority to Ms Podrascanin's solicitors for Ms Podrascanin to sign to authorise the release of information to Lumley Life. On 14 April 2003 the employee of Lumley Life again telephoned Wesfarmers and was informed that Wesfarmers had not received the authority signed by Ms Podrascanin. On the same day the employee of Lumley Life telephoned Ms Podrascanin's solicitors. In an affidavit sworn 17 December 2003 by Graeme Rex Jones of Lumley Life in support of the application for summary judgment Mr Jones has deposed that the employee of Lumley Life informed Ms Podrascanin's solicitors of Lumley Life's "outstanding requirements for the assessment of the Claim". On 11 June 2003 the employee of Lumley Life again telephoned Wesfarmers and was informed that an authority from Ms Podrascanin had not been received. In his affidavit Mr Jones deposes that the employee of Lumley Life then telephoned Ms Podrascanin's solicitors "and left a message".

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.