Tower Australia Ltd v Filippis - [2007] VSC 236

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5933 of 2006

TOWER AUSTRALIA LTD	Plaintiff
v
ALEX FILIPPIS	Defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2007
DATE OF JUDGMENT:	25 July 2007
CASE MAY BE CITED AS:	Tower Australia Ltd v Filippis
MEDIUM NEUTRAL CITATION:	[2007] VSC 236

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INSURANCE CONTRACTS – disability income policy – business expense policy – whether insured totally incapacitated – whether not “working” as defined in policies – decision of Victorian Civil and Administrative Tribunal that insurer liable to make payments – whether both conditions of policies applied – finding that insured totally incapacitated for and unable to work in relevant period – reasons for decision - no express finding that insured not working – reasons to be read fairly and in context - finding implicitly made – slip in reasons for decision – not a mistake in reasoning – incorrect approach not adopted – relevant considerations not ignored – appeal under s 148 of Victorian Civil and Administrative Tribunal Act 1998 dismissed.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	JJ Gleeson	Ebsworth & Ebsworth
For the defendant	P Bingham	Maurice Blackburn Cashman

HIS HONOUR:

INTRODUCTION

Tower Australia Ltd disputed Alex Filippis’s claim for disability income and business expense payments arising out of injuries he sustained in a motor vehicle accident. Mr Filippis applied to the Victorian Civil and Administrative Tribunal for orders enforcing the policies.

The Tribunal decided Tower was liable to make monthly payments under the disability income protection policy and ordered Tower to make those payments. It also decided Tower was liable to make payments under the business expense policy, after Mr Filippis supplied certain verified information, which it ordered him to do.

Tower has appealed to this Court from the orders of the Tribunal on a question of law. In well-argued submissions, counsel for Tower contended:

·the Tribunal applied the wrong test when determining whether Mr Filippis was eligible to receive payments under the policies
·the Tribunal erred in determining Mr Filippis was so eligible on the basis of the medical evidence alone
·the Tribunal made its decision without taking into account a relevant consideration

DID THE TRIBUNAL APPLY THE WRONG TEST?

The issues arising under the disability income protection and the business expense policies are identical, so I will focus exclusively on the former.

The disability insurance policy required Tower to pay disability benefits to Mr Filippis if he suffered:

·total disability for at least 14 out of the first 19 days of the waiting period (which the parties agreed was 28 days)
·disability (partial or total) for the balance (if any) of the waiting period
·disability (partial or total) after the end of the waiting period

The policy defined “total disability” to mean Mr Filippis was, solely as a result of his sickness or injuries:

·not working; and
·not capable of generating at least two-thirds of his pre-disability monthly income by working in his normal occupation

“Working”…

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: [2007] VSC 236
Decision Date: 25 July 2007

CaseChat Overview and Summary

In the case of Tower Australia Ltd v Filippis, the dispute centred on the interpretation of disability income and business expense insurance policies held by the respondent, Mr Filippis, with the appellant, Tower Australia Ltd. The matter was initially determined by the Victorian Civil and Administrative Tribunal (VCAT), which found that the insurer was liable to make payments under the policies. Tower Australia Ltd appealed this decision to the Supreme Court of Victoria, arguing that the Tribunal had erred in its interpretation of the policy terms.

The key legal issues before the court were whether Mr Filippis was totally incapacitated and not "working" as defined in the insurance policies during the relevant period, and whether both conditions of the policies had been met. The appellant argued that the Tribunal had erred by not making an express finding that Mr Filippis was not working, and that there was a slip in the Tribunal's reasons for decision. Tower Australia Ltd further contended that the Tribunal had adopted an incorrect approach and had ignored relevant considerations.

The Supreme Court held that the Tribunal had implicitly found that Mr Filippis was totally incapacitated and not working, despite the absence of an express finding. The court found that the Tribunal's reasons for decision contained a slip but this did not constitute a mistake in reasoning. The Tribunal had not ignored relevant considerations, and its approach was not incorrect. The appeal was dismissed, and the decision of the Tribunal was upheld.

The Supreme Court did not make any orders regarding costs, as the appeal was dismissed without any finding of error on the part of the Tribunal. The decision of the Tribunal that the insurer was liable to make payments under the policies was therefore affirmed.

Orders