Preston v AIA Australia Ltd

[2014] NSWCA 165

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Preston v AIA Australia Ltd [2014] NSWCA 165

Hearing dates:

22 April 2014

Decision date:

30 May 2014

Before:

Meagher JA at [1];
Gleeson JA at [2];
Sackville AJA at [7]

Decision:

1. Appeal dismissed.

2. Appellant pay the Respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

INSURANCE - accident insurance - appellant unable to work due to injured ankle - whether appellant's disability resulted from an accidental injury "solely, directly and independently of a pre-existing condition" - effect of a previous injury to both ankles

INSURANCE - accident insurance - whether insurer admitted it had accepted the appellant's claim under the policy

Cases Cited:

Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570
American Home Assurance v Saunders (1987) 11 NSWLR 363
Australian Casualty Co Ltd v Federico [1986] HCA 32; 160 CLR 513
Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 306 ALR 25
Fidelity and Casualty Company of New York v Mitchell [1917] AC 592
Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-751
Jason v Batten (1930) Ltd [1969] 1 Lloyd's Rep 281
Lipertis v Australian Casualty Company Pty Ltd [1983] 2 VR 280
Penn v Standard Life Insurance Company (1912) 76 SE 262
Preston v AIA Australia Ltd [2013] NSWSC 282
Silverstein v Metropolitan Life Ins Co (1930) 171 NE 914 (Court of Appeals, NY)
Wayne Tank and Pump Company Ltd v Employers' Liability Assurance Corporation Ltd [1974] 1 QB 57
Wells v Australian Aviation Underwriting Pool Pty Ltd [2003] QSC 226

Texts Cited:

Oxford English Dictionary Online (May 2014, Oxford University Press)

Category:

Principal judgment

Parties:

Stephen Preston (Appellant)
AIA Australia Limited (Respondent)

Representation:

Counsel:
In person (Appellant)
R A Cavanagh SC / S J Walsh (Respondent)
Solicitors:
Turkslegal (Respondent)

File Number(s):

2013/142431

Publication restriction:

None

 Decision under appeal 

Jurisdiction:

9111

Citation:

Preston v AIA Australia Ltd [2013] NSWSC 282

Date of Decision:

2013-04-03 00:00:00

Before:

Lindsay J

File Number(s):

2011/27942

HEADNOTE

[This headnote is not to be read as part of the judgment]

An insurance policy provided that the appellant would be entitled to a Total Disablement Benefit if he was rendered unable to perform the duties of his usual occupation by an injury that resulted solely, directly and independently of a pre-existing condition.

The appellant suffered a serious injury to both ankles in 1996. He recovered sufficiently from that injury to return to full time work. Thirteen years later,…