Reynolds v Norwich Union Life Australia Ltd

[2000] WASC 122

REYNOLDS -v- NORWICH UNION LIFE AUSTRALIA LTD [2000] WASC 122

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 122
Case No:	CIV:1540/1999	Heard:	4 MAY 2000
Coram:	MASTER BREDMEYER	Delivered:	12/05/00
No of pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	MARK GEORGE REYNOLDS NORWICH UNION LIFE AUSTRALIA LTD
Catchwords:	Interrogatories Narrow scope for interrogatories because of the principle in Heitman v Guardian Assurance Co Ltd & Anor (1992) 7 ANZ Ins Cases 61107
Legislation:	Nil
Case References:	Heitman v Guardian Assurance Co Ltd & Anor (1992) 7 ANZ Ins Cases 61-107 Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 Saunders v Jones (1877) 7 CH D 435 Sharpe v Smail (1975) 5 ALR 377 WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 West v Conway (1923) 23 SR (NSW) 344

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : REYNOLDS -v- NORWICH UNION LIFE AUSTRALIA LTD [2000] WASC 122 CORAM : MASTER BREDMEYER HEARD : 4 MAY 2000 DELIVERED : 12 MAY 2000 FILE NO/S : CIV 1540 of 1999 BETWEEN : MARK GEORGE REYNOLDS

Plaintiff

AND

NORWICH UNION LIFE AUSTRALIA LTD
Defendant

Catchwords:

Interrogatories - Narrow scope for interrogatories because of the principle in Heitman v Guardian Assurance Co Ltd & Anor (1992) 7 ANZ Ins Cases 61107

Legislation:

Nil

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr B L Nugawela
Defendant : Mr D Chew

Solicitors:

Plaintiff : Friedman Lurie Singh
Defendant : Minter Ellison

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

Heitman v Guardian Assurance Co Ltd & Anor (1992) 7 ANZ Ins Cases 61-107
Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101

Case(s) also cited:

Saunders v Jones (1877) 7 CH D 435
Sharpe v Smail (1975) 5 ALR 377
WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559
West v Conway (1923) 23 SR (NSW) 344

(Page 3)

1 MASTER BREDMEYER: This is an application by the defendant for further and better answers to interrogatories administered to the plaintiff.

2 The background to the application as pleaded in the statement of claim is that the plaintiff was employed by Roche Bros as a plant operator. He had a permanent disability insurance policy with the defendant. If totally and permanently disabled he was entitled to a payment of $426,710. He was injured at work on 20 June 1995. He made a claim under the policy for total and permanent disability benefit on 29 May 1997. The claim was refused. Part of cl 3.3(a) of the policy provided:

"Where, in the opinion of the defendant, the plaintiff becomes so disabled by bodily injury or disease that he will never be able at any time in the future to perform any work, follow any occupation or engage in any business for remuneration, gain or profit for which he is reasonably qualified by education, training or experience, provided always that such disablement must have begun after the commencement of the policy." (Emphasis mine)

The clause also provided that the claim would not be considered by the defendant unless the disability had continued for at least 26 consecutive weeks.

3 Two positive defences are pleaded. One in par 8 of the defence is that the defendant was entitled to deny the claim on the ground that the plaintiff's condition did not come within cl 3.3 or 3.4(2) of the policy.

4 Particulars

"(a) The defendant does not have satisfactory proof pursuant to clause 3.4(2) of the policy (as pleaded in paragraph 5(b) above) that the plaintiff is totally and permanently disabled as that phrase is defined in clause 3.3(a) of the policy …"

5 The second defence pleaded in par 9 is that the defendant was entitled to deny the claim on the ground that the plaintiff had failed to disclose that on 1 April 1995 he had been in a work accident by which he suffered an injury to his lower back. He also failed to disclose that on 3 April 1995 he consulted Dr Clarke about that injury to his lower back and that he failed to disclose that he told Dr Clarke on that occasion that the injury was a result of a work accident which occurred on 1 April 1995.

(Page 4)

The defence pleads that, if the plaintiff had disclosed those matters, the defendant would have accepted the plaintiff's proposal for insurance only on the basis that a clause excluding liability for spinal injuries be included in the policy.

6 In refusing to answer many of the interrogatories asked, the plaintiff relies on Heitman v Guardian Assurance Co Ltd & Anor (1992) 7 ANZ Ins Cases 61-107, a decision of Franklyn J of this Court. I quote from 77,491 - 77,492 of that judgment:

"In my opinion, save where it is unreasonable on the medical evidence provided or obtained to fail or refuse to form the relevant opinion, total and permanent disablement within the meaning of subpara (ii) of the policy definition exists when the conditions prescribed by that subparagraph exist, ie the six months' absence from employment and the formation by the insurer of the relevant opinion. On the occurrence of those two events it exists within the meaning and for the purposes of the policy. If after a consideration of medical evidence, the relevant opinion is not formed and on an objective view of that evidence the failure or refusal to form the same is not unreasonable, then for the purposes of the policy the insured has not established total and permanent disablement, even if, as a matter of fact, he was then disabled to the extent identified in the definition and whether or not other medical evidence then existed or subsequently came into existence to show that he was, as a matter of fact, relevantly incapacitated. On the assumption that the policy is still in force in relation to him, he may in such case seek a further consideration by the insurer of further medical evidence. I have concluded that the fact that medical evidence existed which was not before the first defendant at the times relevant to these proceedings when it refused to form the relevant opinion and which might have led to formation of such an opinion, cannot result in a finding that it should on either such occasion have formed the opinion that the plaintiff was incapacitated to the relevant extent. Specifically I am satisfied that medical evidence in existence between mid-1984 and mid-1985, but not produced to or obtained by the first defendant and not known to it, whether it came into existence before or after its refusal or failure to form the said opinion, cannot lead to a finding that the first defendant, within that period, should have formed the relevant opinion. Similarly, evidence which subsequently came into existence cannot lead to

(Page 5)

such a conclusion. All such evidence is irrelevant to the issues in the trial and was properly inadmissible."

7 I consider that case is closely analogous and directly relevant to this case. The wording of the policies in each case is very similar.

8 I turn now to the interrogatories. I consider question 1 is answered adequately. The initial promised payment was $400,000 but the policy allowed for inflation and on the defendant's own documents (the policy and the schedules) the inflated figure is said to be $426,710. I consider it is not necessary, on Heitman, for the plaintiff to answer how he became totally and permanently disabled so as to justify his claim under the policy. The defendant has made its decision that the plaintiff is not totally and permanently disabled and the court must consider that decision, to see if it is not unreasonable, on the basis of the information before the defendant at the time it rejected the claim. It is not open to the plaintiff to provide new evidence to strengthen its claim; nor is it open to the defendant to obtain, by interrogatories or any other method, further evidence in support of its decision to deny the claim.

9 Because of Heitman, the question asked is not material to support the defendant's case. It is said that the right to interrogate is not confined to facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue: Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 at 112. But this must now be tempered by O 1 r 4A and 4B. If the answer given to the question asked cannot be used at trial because it is irrelevant to these issues (based on Heitman), how can it be said that an answer to that question is "essential to the fair and just determination of the issues"?

10 Question and answer 2 are as follows:

"QUESTION 2

As to the allegation that you made a claim for payment of the total and permanent disability benefit in accordance with clause 3.4 of the policy on or about 29 May 1997:

(a) describe the nature of the injury or injuries you sustained which justified the claim for total and permanent disability benefit pursuant to clause 3.4 of the policy ('injury'), how it occurred and identify the part or parts of your body affected;

(Page 6)

(b) state the date of the injury;

(c) regarding the symptoms suffered by you as a result of the injury:


(i) describe your symptoms at the time of suffering the injury;

(ii) state whether those symptoms ceased and if so, approximately when;

(iii) state whether those symptoms subsided and if so, approximately when;

(iv) state whether you presently suffer from those symptoms, and if so, describe the current symptoms.


ANSWER 2

(a) I suffered an acute back injury whilst operated a 922 Caterpillar loader when the bucket of the loader struck a rock and the loader jolted to a stop causing a feeling like a 'punch' in the central lower back;

(b) 20 June 1995;

(c) I object to answering this interrogatory on the ground that it is not relevant to this action."

11 I consider that the plaintiff's brief description of the accident in (a) is adequate. I consider it is not open to the defendant to ask the plaintiff to describe why he says he is totally and permanently disabled, for reasons given earlier in relation to question 1 and on the authority of Heitman. The court's examination of the defendant's decision on this point must be based on the same evidence which was before the defendant. That evidence is in the plaintiff's claim form which includes two medical reports.

12 Likewise with question 2(c), it is not now open to the defendant to interrogate the plaintiff to get a better description of his symptoms so that the defendant can bolster its decision to deny his claim.

(Page 7)

13 Question and answer 3 are as follows:

"QUESTION 3

State whether you received medical treatment for the injury and if so with respect to each separate medical practitioner providing treatment:

(a) state the name and address of each individual practitioner;

(b) state each medical practitioner's diagnosis;

(c) specify the duration of treatment prescribed by each medical practitioner;

(d) describe the nature of the treatment prescribed by each medical practitioner;

(e) specify each medical practitioner's assessment of your capacity to work.

ANSWER 3

(a) I object to answering this interrogatory on the ground that it is not relevant. Alternatively, if relevant, the interrogatory is a request for the names and addresses of witnesses, which in itself is objectionable."

14 I again apply the Heitman principle to reject this request.

15 I quote question and answer 5:

"QUESTION 5

State whether you made a worker's compensation claim for the injury, and if so, state:

(a) whether liability was admitted;

(b) whether liability was denied, and if so, whether you subsequently proved and settled the claim and if so, approximately when;

(c) whether weekly payments of compensation were made and if so, the approximate period(s) of time for which compensation was paid;

(Page 8)

(d) whether you received any settlement for the claim and if so, state approximately when and the approximate amount of any such settlement.

ANSWER 5

The plaintiff objects to answering this interrogatory as it is not relevant to this action."

16 I propose to refuse this request. It is not relevant to know whether the plaintiff made a worker's compensation claim for this injury although I understand that worker's compensation documents have been disclosed on discovery. Whether he made a worker's compensation claim, whether it was admitted or denied, or determined by an independent body, is irrelevant. The court has to review the defendant's decision on liability on the material which it had at the time and not bolstered by further material attempted to be obtained by this interrogatory.

17 Question 6 asks similar questions in relation to whether the plaintiff made any other claim, eg a claim for common law damages or under another insurance policy, in respect of the injury. I make the same comment and decline to order the plaintiff to answer this question.

18 Question and answer 7 read:

"QUESTION 7

Apart from the injury allegedly suffered by you which led to you making a claim for payment of the total and permanent disability benefit in accordance with the policy on or about 29 May 1997 as pleaded in paragraph 6 of the statement of claim, have you suffered any previous injury or injuries in relation to your back/spine, neck, stomach or kidney ('previous injury')?

ANSWER 7

Yes. I have suffered an injury to my kidney and I suffered muscle pain in the back following an incident at work on 1 April 1995 but do not know and cannot say if this pain constituted an 'injury'."

19 This answer is vague and confusing. Did he suffer both the injury to the kidney and the muscle pain in the incident at work on 1 April 1995, or were they separate injuries suffered on different occasions? I will strike

(Page 9)

out all words after the word "Yes". I will not order a further and better answer, because Question 8 asks "If the answer to the preceding interrogatory is Yes," and then asks supplementary questions. The answers to Question 8 are not under challenge and they clarify that the kidney injury was suffered in 1986, and that the back strain, said to be a pulled muscle, was suffered on 1 April 1995.

20 Subject to the deletions of all words after "Yes" in answer 7, the application will be dismissed.