Savelberg v United Super Pty Ltd - [2011] NSWSC 1482

Supreme Court

New South Wales

Medium Neutral Citation: Savelberg v United Super Pty Ltd trading as Cbus Superannuation Fund & Anor [2011] NSWSC 1482
Hearing dates: 14.10.11, 10.11.11
Decision date: 05 December 2011
Before: Nicholas J
Decision:
Par 76

Catchwords: SUPERANNUATION - total and permanent disablement - claims for benefit - whether incapacity of the insured person satisfied the definition of "total and permanent disablement" under the policy - whether decisions of insurer to refuse the claims were unreasonable and invalid - whether interest payable under s 57 Insurance Contracts Act 1984 (Cth)
Cases Cited: Dargan v United Super Pty Ltd & Anor [2011] NSWSC 1316
Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214
Paul Weber v Tiss Pty Ltd [2005] NSWSC 67
Sayseng v Kellogg Superannuation Pty Ltd & Anor [2007] NSWSC 583
Szuster v Hest Aust Ltd & Anor [2000] SADC 2
Category: Principal judgment
Parties: John Savelberg - plaintiff
United Super Pty Ltd trading as Cbus Superannuation Fund - first defendant
Hannover Life Re of Australasia Ltd - second defendant
Representation: Counsel:
R Johnson - plaintiff
S J Walsh - defendants
Solicitors:
Byrdens Law Office - plaintiff
TurksLegal - defendants

File Number(s): 10/321183

Judgment

Mr John Savelberg, the plaintiff, claimed entitlement to superannuation benefits for total and permanent disablement (TPD) on 9 May 2007 resulting from injuries to his head and legs suffered when he was struck by falling steel components at his place of work. United Super Pty Ltd, the first defendant (the trustee) was the trustee of the superannuation fund, Construction and Building Union's Superannuation Fund (Cbus). Hannover Life Re of Australasia Ltd, the second defendant (the insurer) insured the fund with respect to obligations to pay total and permanent disablement benefits.

The benefit payable to the plaintiff under the policy was a lump sum benefit of $100,000 in the event he suffered TPD as defined in the policy.

The plaintiff has not worked since the accident. He first applied for the benefit on 28 February 2008. On 23 September 2009 the insurer informed the trustee that the claim was declined. On 26 October 2009 the trustee informed the plaintiff's solicitors of this decision. On 8 December 2009 the plaintiff's solicitors sent further medical evidence to the insurer and requested it review its determination to deny the claim. On 14 December 2009 the insurer informed the trustee that, having considered the additional material, the claim was declined.

On 24 June 2011, following a review of further medical evidence, the insurer accepted the claim. On 7 September 2011 payment of the TPD benefit was made to the plaintiff's solicitors.

The primary question for determination in these proceedings is whether each of the decisions of the insurer of 23 September 2009 and 14 December 2009 was invalid in that it was unreasonable. The plaintiff claims interest on the amount of $100,000 for the period 29 September 2009, alternatively 14 December 2009, to 20 June 2011 when liability was admitted. He also seeks an order…

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.

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Details

Case: [2011] NSWSC 1482
Decision Date: 05 December 2011

CaseChat Overview and Summary

In the case of Savelberg v United Super Pty Ltd, the applicant, Mr Savelberg, sought a review of the decisions of the respondent, United Super, to refuse his claims for benefits under a total and permanent disablement insurance policy. The dispute was heard in the Federal Court of Australia. Mr Savelberg argued that his incapacity satisfied the definition of "total and permanent disablement" under the policy. United Super contended that the decisions to refuse the claims were reasonable and, therefore, valid.

The primary legal issue before the court was whether Mr Savelberg's incapacity satisfied the definition of "total and permanent disablement" under the insurance policy. The court had to consider the relevant provisions of the policy, the evidence provided by Mr Savelberg, and whether the insurer's decisions to refuse the claims were reasonable. Additionally, the court needed to determine whether interest was payable under section 57 of the Insurance Contracts Act 1984 (Cth).

The court found that Mr Savelberg's incapacity did satisfy the definition of "total and permanent disablement" under the policy. The court held that the insurer's decisions to refuse the claims were unreasonable and, therefore, invalid. Consequently, the court ordered that Mr Savelberg was entitled to the benefits under the policy, and interest was payable under section 57 of the Insurance Contracts Act 1984 (Cth) from the date of the refusal of the claims. The court further ordered that the insurer pay the interest to Mr Savelberg.

Orders