Stephen Frederick Preston v AIA Australia Ltd

[2014] HCASL 215

STEPHEN FREDERICK PRESTON

v

AIA AUSTRALIA LTD

[2014] HCASL 215
S139/2014

1. The applicant applies for special leave to appeal from the judgment of the Court of Appeal of the Supreme Court of New South Wales (Meagher and Gleeson JJA, Sackville AJA) dismissing his appeal from the judgment of Lindsay J.

2. The applicant's claim was to entitlement to a "total disablement benefit" and a "waiver of premium benefit" under an income protection policy issued by the respondent.  The entitlement was said to arise as a consequence of an injury to the applicant's left ankle sustained on 6 May 2009.  Liability was disputed on the ground that the injury was not an "accidental injury".  Relevantly, the policy defined "accidental injury" to mean "a physical injury … which results solely and directly and independently of a pre-existing condition or any other cause in total disablement". 

3. The primary judge upheld the respondent's defence.  His Honour accepted that the disability resulting from the 2009 injury was caused in part by a pre-existing injury sustained 13 years earlier[1].

   [1]Preston v AIA Australia Limited [2013] NSWSC 282 at [12].

4. Sackville AJA, giving the leading judgment, rejected a challenge to the primary judge's factual findings.  His Honour concluded that the effect of the findings was that there were two concurrent causes of the applicant's disability[2].  It followed that the 2009 injury was not an "accidental injury" within the terms of the policy.  Sackville AJA rejected a second ground of challenge, which asserted that the respondent had accepted his claim by paying an amount into the applicant's bank account on 8 January 2010.  His Honour considered that in all of the circumstances the payment could not be regarded as an acceptance of the applicant's claim[3].  

   [2]Preston v AIA Australia Ltd [2014] NSWCA 165 at [96] (Meagher JA agreeing at [1], Gleeson JA agreeing at [6]).

   [3]Preston v AIA Australia Ltd [2014] NSWCA 165 at [104] (Meagher JA agreeing at [1], Gleeson JA agreeing at [6]).

5. The applicant now seeks special leave to appeal from the judgment of the Court of Appeal. He does not have legal representation and his application falls to be determined under r 41.10 of the High Court Rules 2004 (Cth).

6. The applicant's draft notice of appeal contains 11 grounds.  Some challenge the concurrent findings of fact.  None raise a question of general importance suitable for the grant of special leave.  If special leave to appeal were granted, the appeal would have insufficient prospects of success.

7. The application is dismissed.

8. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
10 December 2014 S.J. Gageler