Wells v Australian Aviation Underwriting Pool Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Wells v Australian Aviation Underwriting Pool Pty Ltd [2003] QSC 226

PARTIES:

ROBYN LUCELLE WELLS
(plaintiff)
v
AUSTRALIAN AVIATION UNDERWRITING POOL PTY LTD (ACN 004 489 810)
(defendant)

FILE NO/S:

SC No  8085 of 1999

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

21 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

26 – 30 May 2003

JUDGE:

McMurdo J

ORDER:

1.   Claim dismissed.

2.   Unless the plaintiff serves upon the defendant’s solicitors and delivers to the court a submission as to costs within 7 days of today, the plaintiff is to pay the defendant’s costs of the proceedings to be assessed.

3.   In the event that such a submission is delivered, the defendant is directed to serve upon the plaintiff’s solicitors and deliver to the court a submission as to costs within a further 7 days.

CATCHWORDS:

INSURANCE – CONSTRUCTION OF POLICY - where plaintiff injured in a motor vehicle accident – where plaintiff made claim for payment of a disability benefit under an accident insurance policy – where defendant to pay the plaintiff $500,000 if plaintiff, as a result of any bodily injury, suffered an “Permanent Total Disablement” as defined in the policy – whether alleged disablement must have been solely and independently of any other cause, the result of any injury suffered – whether an injury sufficiently causing a disablement would cease to be so if the insured suffers a later injury which of itself would have caused a disablement

INSURANCE – CONSTRUCTION OF POLICY - where insurance policy provides bodily injury must directly result in a permanent and total disablement lasting twelve calendar months which, at the end of the period must be beyond hope of improvement – where disablement must prevent the insured engaging in each and every occupation or employment for wage or profit for which the insured is reasonable qualified – whether plaintiff prevented from engaging in an occupation for which he was reasonably qualified – whether plaintiff suffered a permanent and total disablement beyond hope of improvement

Fidelity and Casualty Company of New York v Mitchell (1917) AC 592, considered
Jason v Batten (1930) Ltd [1969] 1 Lloyd’s Reports 281, considered
QBE Insurance Limited v Jande (1995) 8 ANZ Insurance Cases 61-270, considered

COUNSEL:

C Heyworth-Smith for the plaintiff
S Couper QC for the defendant

SOLICITORS:

Melrose King & Emerson for the plaintiff
Hunt & Hunt for the defendant

1. McMURDO J:  This is a claim for payment of a disability benefit under a policy of accident insurance.  The plaintiff, Mrs Wells, entered into the policy with the defendant for a period of cover for the year commencing 1 October 1995.  The policy insured against injury during that period to her husband, Mr Brian Colin Wells.  The defendant promised to pay an amount of $500,000 if Mr Wells suffered “Permanent Total Disablement”, as defined in the policy, resulting from such an injury.  Her case is that Mr Wells suffered an injury in a motor accident or about 17 August…