Wells v Australian Aviation Underwriting Pool

SUPREME COURT OF QUEENSLAND

CITATION:

Wells v Australian Aviation Underwriting Pool [2004] QCA 43

PARTIES:

ROBYN LUCELLE WELLS
(plaintiff/appellant)
v
AUSTRALIAN AVIATION UNDERWRITING POOL (now known as QBE AVIATION)
(defendant/respondent)

FILE NO/S:

Appeal No 7270 of 2003
SC No 8085 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2004

JUDGES:

de Jersey CJ, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

INSURANCE – ACCIDENT AND SICKNESS INSURANCE – THE CONTRACT – CONDITIONS – where appellant entered into policy insuring against injury to her husband – where appellant’s husband was injured in a motor vehicle accident – whether the trial Judge erred in their construction of the definitions of “permanent total disablement” and “reasonably qualified by training, education or experience” – whether the trial Judge erred in his findings as to the capacity of the appellant’s husband to work and the income earned after the accident occurred – whether the trial Judge erred in finding that the business remained registered – whether the trial Judge allowed the respondent’s Counsel to cross-examine witnesses using fictitious information

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, distinguished
Devries v Australian National Railway Commission (1992) 177 CLR 472, referred to
Fox v Percy [2003] HCA 22; (2003) 197 ALR 201, distinguished

COUNSEL:

The appellant appeared on her own behalf with B C Wells assisting
S W Couper QC for the respondent

SOLICITORS:

The appellant appeared on her own behalf with B C Wells assisting
Hunt & Hunt Lawyers for the respondent

1. de JERSEY CJ:  The appellant unsuccessfully sued the respondent insurance company for the sum of $437,600, claimed to be due under a policy of accident insurance.  She had entered into a 12 month policy commencing on 1 October 1995, insuring against injury to her husband, Brian Colin Wells.  Should such injury produce “permanent total disablement”, then the sum of $500,000 was to be  payable to the appellant.  Mr Wells was injured in a motor vehicle accident on 17 August 1996, during the currency of the policy.  The respondent accepted that he consequently suffered temporary disablement, which entitled the appellant to payments totalling $62,400, which were made.  The amount claimed was the difference between those two sums.  It was accepted that the lesser sum had to be brought to account were a finding of permanent total disablement warranted and the sum of $500,000 otherwise due.

1. We received comprehensive written submissions for the appellant.  At her request, her case was, by leave, presented orally at the hearing by her husband.  (The respondent raised no objection to that course).

1. Mr Wells was 59 years old when he suffered his injury.  He was a qualified pilot and licensed aircraft maintenance engineer.  He and the appellant were the…