Fletcher v The Lawlink Group Limited
[2025] NZHC 162
•14 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-470-71
[2025] NZHC 162
BETWEEN DARRYL JOHN FLETCHER
Plaintiff
AND
THE LAWLINK GROUP LIMITED
First Defendant
AND
RESOLUTION LIFE AUSTRALASIA LIMITED
Second Defendant
Hearing: 19, 20, 21, 22, 23, 26 and 27 August 2024 Appearances:
Plaintiff in person with McKenzie friends Elly Winslow and Susan Brooks
D R Bigio KC and K S Deobhakta for first defendant D J Friar and L J McNeely for second defendant
Judgment:
14 February 2025
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 14 February 2025 at 3pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Morgan Coakle, Auckland Bell Gully, Auckland
FLETCHER v THE LAWLINK GROUP LTD [2025] NZHC 162 [14 February 2025]
TABLE OF CONTENTS
The Policy and its operation until 2020 [8]
The Policy at the time of Mr Fletcher’s injury in 2011 [8]
The Insurer responsible under the Policy [9]
The Policy, in general terms [10]
Nomination and acceptance [12]
Payment of benefits [14]
Does the Policy operate to entitle Resolution Life to information that
Lawlink does not possess? [50]
Production of information [50]
Mr Fletcher’s position [52]
Discussion [56]
Conclusion [63]
Did the Policy entitle Resolution Life to require Mr Fletcher’s medical
records and that he attend the specified additional medical examinations? [66]
Resolution Life’s evidence of the reasonableness of requiring medical
records and additional medical examinations [67]
Mr Fletcher’s position [76]
Attendance for examination forms necessary part of the production of
“evidence” [77]
Additional examination and assessment reasonably required [82]
Does Mr Fletcher’s refusal to authorise provision of his medical records, and to attend additional examinations, entitle Resolution Life to cease
paying benefits? [89]
Mr Fletcher’s position [89]
Discussion [90]
What are the consequences of these findings for Mr Fletcher’s claims? [98]
Result [107]
[1] The plaintiff, Darryl John Fletcher, was a lawyer. And he was a partner at the Tauranga-based law firm Sharp Tudhope Lawyers. While playing rugby on Saturday, 16 April 2011, Mr Fletcher suffered a head injury. He has not since undertaken any paid work.
[2] The first defendant (Lawlink) is a company that describes itself as a network of independent law firms. Lawlink serves its member law firms in various ways. It charges them levies for doing so. One way in which Lawlink has served its members is by offering their partners and staff access to a group insurance policy it has had in place, subject to amendment from time to time, since its inception in 1988.
[3] The second defendant (Resolution Life) is an insurer. It accepts it has become responsible for all of the insurer’s obligations under the version of the policy that became effective in 2009 (the Policy).
[4] Sharp Tudhope has been a member of Lawlink throughout. At the time he was injured, Mr Fletcher had been named and accepted as a “Life Insured” — a person in respect of whom benefits might become payable in the event of his “Total Disablement” — under the Policy. Monthly benefit payments commenced to be paid to Mr Fletcher in August 2011. Benefit payments were then made annually. But no benefit has been paid since July 2019. Resolution Life ceased paying benefits when Mr Fletcher declined to provide his medical records, and to attend examinations (at Resolution Life’s request) by medical physicians other than those he has seen regularly for some years.
[5] Mr Fletcher says that the Policy does not entitle Resolution Life to require these records and additional examinations. He sues both Lawlink and Resolution Life, seeking that benefit payments be brought up to date and then continued. He also seeks
$300,000 in general damages.
[6] I am required to determine the extent of Resolution Life’s entitlement, under the Policy, to information about Mr Fletcher. In particular:
(a)Does the Policy, entered between Lawlink and Resolution Life, entitle Resolution Life to information that Lawlink does not possess?
(b)If so, did the Policy entitle Resolution Life to require Mr Fletcher’s medical records and that he attend the specified additional medical examinations?
[7] If the answer to the last question is yes, I must also determine whether Mr Fletcher’s refusal to authorise the provision of his medical records, and to attend the examinations, entitled Resolution Life to cease paying benefits.
The Policy and its operation until 2020
The Policy at the time of Mr Fletcher’s injury in 2011
[8] The first policy Lawlink entered, in 1988, was issued by The National Mutual Life Association of Australia Limited, an insurer described in the policy itself as “National Mutual”. As mentioned above, the policy was amended from time to time. The Policy in place at the time of Mr Fletcher’s injury in 2011 came into force when National Mutual and Lawlink agreed to amend the previous policy, by wholesale replacement of its provisions, with effect from 1 October 2009.
The Insurer responsible under the Policy
[9] On 1 January 2017, AMP Life Limited assumed National Mutual’s obligations under the Policy. And on 25 November 2021, AMP Life Limited was re-named Resolution Life Australasia Limited. In this judgment, the insurer responsible under the Policy is referred to throughout, for the sake of simplicity, as Resolution Life.
The Policy, in general terms
[10]In general terms, the Policy provides for:
(a)nomination by Lawlink as “the Proposers”, and acceptance by Resolution Life as the “Insurer”, of eligible individuals associated with Lawlink member firms as persons insured under the Policy (“Lives Insured”);
(b)the payment by Resolution Life of benefits, upon such Lives Insured becoming “totally disabled” but subject to qualification, either by way of exception or upon the period of total disablement coming to an end;
(c)the production of information by Lawlink to Resolution Life upon a Life Insured becoming entitled to receive a benefit;
(d)enforcement as between Lawlink and Resolution Life, with Lawlink holding the Policy and benefits on trust for the persons in respect of whom the benefits are payable; and
(e)other unsurprising matters, such as the payment of premiums, and for variation and termination (leaving extant claims intact).
[11] Describing the Policy in these general terms provides a convenient set of topics for further discussion of its nature, and of the way in which it operated until 2000. I turn first to the topics of nomination and acceptance, and the payment of benefits by Resolution Life (and their cessation in 2000), for the purpose of informing the subsequent discussion.
Nomination and acceptance
[12]The Policy contains the following clauses:
4. Persons Eligible to Become Lives Insured
Each Person who satisfies the Eligibility Conditions [as defined in the First and Fourth Schedule of the Policy] shall be nominated by the Proposers for
acceptance by the Insurer as a Life Insured. Lists of those Persons nominated shall be lodged with the Insurer at the Commencing Date and at the times thereafter as further Persons are nominated.
6. Acceptance
The Insurer shall notify the Proposers which of the Persons named in any list submitted by the Proposers as aforesaid the Insurer accepts to become Lives Insured under the Policy and any person so accepted is herein referred to as a "Life Insured" and the date on which any such Person becomes a Life Insured shall be that notified to the Proposers by the Insurer. The Insurer may accept a Person for a Personal Sickness or Accident Benefit up to a limit or subject to special terms and conditions or restrictions notified to the Proposers. Irrespective of any eligibility criteria any Person who has been in Service for 18 months or more will not be eligible for automatic acceptance cover.
[13] There is no dispute that, as a partner at Sharp Tudhope, Mr Fletcher satisfied the Eligibility Conditions of the Policy. Prior to Mr Fletcher’s injury, he was nominated by Lawlink’s insurance broker, Marsh Ltd, as a Life Insured. Resolution Life accepted Mr Fletcher’s nomination.
Payment of benefits
[14] Clause 18 of the Policy provides that its schedules have the same effect as if set out in its body. Within the Policy’s Second Schedule, clause 1 provides:
1. Amount of Benefit - Total Disablement
If a Life Insured becomes Totally Disabled while in the Service before the Life lnsured's Benefit Cease Date the Insurer shall pay to the Proposers a Personal Sickness or Accident Benefit the annual amount of which is the Specified Amount less any amounts paid or payable to the Life Insured in the form of -
(i) periodic disability income benefits arising under any other insurance policy or superannuation fund or scheme:
(ii) periodic compensation pursuant to any statute or ordinance (whether by way of workers compensation, accident compensation, social security payment or otherwise) whether commuted or not and whether received by way of court order settlement or agreement.
[15] Thus, Resolution Life became obliged to pay a benefit in respect of Mr Fletcher, in the event he became “Totally Disabled”. And that benefit was to be paid “to the Proposers” (Lawlink).
[16] The Policy stated various exceptions to Resolution Life’s obligation to pay such a benefit. For example, under clause 8, no benefit was payable if Mr Fletcher became Totally Disabled as a consequence of “intentional self-injury”. And under clause 10(a), no benefit was payable and all benefits previously paid would be forfeited, if Lawlink, their agents, or Mr Fletcher had made “any untrue statement” or any (in Resolution Life’s opinion) “concealment or misrepresentation” material to the contract.
[17] Clause 2 of the Second Schedule provides for the “Duration of Payment of Benefit”. Under that clause, Resolution Life’s payments were payable on the first day, following a qualification period, of Mr Fletcher’s “Total Disablement”. And a “last instalment” is due on the first day of the month following the first of various events, including that Mr Fletcher “ceases to be Totally Disabled”.
[18] The Policy’s First Schedule is headed “Interpretation”. It commences by stating that “unless the context otherwise requires … the words and expressions set out in this Schedule shall have the meanings herein defined”. Later in the First Schedule, the following appears:
“Total Disablement” means that by reason solely of injury or sickness the Life Insured:
(i)is not engaged in his or her usual profession, business or occupation for more than 10 hours per week;
(ii)is not engaged in any other profession, business or occupation for financial gain;
(iii)is under the continuous direction and professional care of a Medical Practitioner.
PROVIDED THAT these will not override the Life Insured’s entitlement to benefits under the provisions of clause 3 of the Second Schedule.
[19] It might be noticed that, whereas the obligation to pay the benefit arose in the event Mr Fletcher became “Totally Disabled”, this definition is of
“Total Disablement”. There is no explicit definition of “Totally Disabled”. But there can be no significant doubt that the terms are used interchangeably to suit grammatical necessity. And clause 1 of the Second Schedule, creating the obligation to pay, is headed with the words “Total Disablement”. I proceed on the basis that the above definition describes the circumstances of a person who, in terms of the Policy, has become Totally Disabled.
[20] On the face of limb (ii) of the above definition, Mr Fletcher would not have become Totally Disabled, had his injury permitted him to engage in a profession, business or occupation other than that in which he had been engaged at Sharp Tudhope. For the purposes of this proceeding, however, Resolution Life has committed itself not to rely upon limb (ii). It has done so, recognising that throughout the life of Mr Fletcher’s claim, Resolution Life’s claims team and medical advisors have treated the Policy as what is generically described in the insurance industry as an “own occupation” policy.
[21] As indicated above, Resolution Life commenced benefit payments in respect of Mr Fletcher’s injury in August 2011. It is convenient at this point to provide further detail.
[22] Marsh (Lawlink’s insurance broker) submitted a claim form dated 24 June 2011. The completed form described Mr Fletcher as having suffered a brain injury due to a clash of heads while playing rugby, and not having worked since. It indicated:
(a)Mr Fletcher had seen his general medical practitioner (GP), two days after the incident, on 18 April 2011, and a neuropsychiatrist, Dr Gil Newburn, on 2 June 2011.
(b)Mr Fletcher had commenced to receive periodic payments from the Accident Compensation Corporation (ACC).
[23]Mr Fletcher had signed the form twice:
(a)first, under a declaration to the effect that it was true and complete; and
(b)second, under a form of words authorising “any person or medical institution having any medical, financial or other personal information about me to release to [Resolution Life] any information relevant to this claim it may require”.
[24] Amongst other things, Resolution Life was provided with Mr Fletcher’s GP’s medical notes for the period from 1 April to 19 July 2011, and Dr Newburn’s letter dated 9 June 2011, reporting to Mr Fletcher’s GP. Dr Newburn concluded by observing that Mr Fletcher had presented with “typical features of traumatic brain injury”. He added:
While his injury by any definition would be considered mild, he clearly has more than mild consequences. There is no evidence that there is any other factor such as depression, or any psychogenic process. There is no gain for him in this state.
Many of his issues arise with difficulties dividing and alternating attention, with secondary fatigue issues with any increased mental effort required.
[25] A member of Resolution Life’s claims team sought information from ACC. ACC provided a report it had received from another neuropsychologist, Dr Susan Shaw, to whom ACC had referred Mr Fletcher for the purpose of assessment and advice in relation to his rehabilitation. In her report, Dr Shaw observed that Mr Fletcher had presented irritably on 20 July 2011, seemingly concerned that she might provide a diagnosis alternative to that of Dr Newburn, which might have a destabilising impact upon his treatment and recovery. Dr Shaw commenced the conclusion of her report as follows:
Darryl is an intelligent gentleman who does not appear to have suffered any significant or lasting cognitive impairment as a result of the concussive brain injury he suffered two months ago. At present, he seems perhaps a little cognitively less efficient than usual, but he has not experienced a decline in intellect or memory. He should be able to do all the cognitively demanding tasks he was capable of prior to his injury, but he may find he is not able to do these activities as quickly as he once did, and he may find he needs to work on only one thing at a time for the time being.
[26] And Dr Shaw recommended, amongst other things, that Mr Fletcher consult an occupational therapist.
[27] This then, is the essential background against which on 10 August 2011 Resolution Life advised Marsh that it would commence, the next day, paying monthly benefit payments under the Policy, directly to Mr Fletcher. Initially, Resolution Life required that it be provided with “Progress Claim Forms” (PCFs), to be completed by Mr Fletcher and his GP, on a monthly basis. And the forms were duly completed.
[28] Mr Fletcher attended medical assessments with Dr David Ruttenberg, an occupational medicine specialist appointed by ACC, in September 2011 and January 2012. Dr Ruttenberg reported, following the September assessment, that Mr Fletcher could start returning, in a graduated fashion, to part time employment within the next three months. Following the January assessment, Dr Ruttenberg reported that Mr Fletcher was “still unfit for his pre-injury role given cognitive, work and time demands that would be made of and on him”. However, he added his opinion that difficulty arose because Mr Fletcher was unable to return to work gradually, and thus could only be pronounced “fully fit or otherwise in this particular work role”.
[29] During the January assessment, Dr Ruttenberg suggested that Mr Fletcher get a second opinion, from a neuropsychiatrist other than Dr Newburn. The occupational therapist who was present reported to Resolution Life that the meeting did not “go well” after this. In March 2012, Mr Fletcher confirmed with Resolution Life directly that he would not agree to consult the second neuropsychiatrist that Dr Ruttenberg had suggested (Dr Greg Finucaine).
[30] On 24 April 2012, Mr Fletcher advised Resolution Life that ACC had ceased making periodic payments, and that he had been made redundant by Sharp Tudhope. By this time, Resolution Life had engaged with Mr Fletcher over the possibility of his rehabilitation, including by funding consultations with a psychologist and an occupational therapist. However, Mr Fletcher came to view the prospect of rehabilitation as unrealistic, and in early 2013 the consultations ceased.
[31] In the meantime, during the balance of 2012, Resolution Life sought to arrange for Mr Fletcher to consider undergoing further assessment, by physicians other than Dr Newburn. In May 2012, Resolution Life arranged for its chief medical officer, Dr Peter Robinson to review its file. Dr Robinson recommended psychological and neuropsychological review by Dr Ralf Schnabel, followed by psychiatric review. Dr Robinson met Dr Newburn, it seems for the purpose of encouraging further assessment by alternate physicians. And an appointment was made for Mr Fletcher with Dr Schnabel. But Mr Fletcher declined to attend, advising that the thought of doing so made him anxious and that he did not think the Policy required it.
[32] On 13 August 2013, Mr Fletcher took issue with Resolution Life’s practice of delaying benefit payments until it had received PCFs relating to the period of the payment. He wrote:
i have had a good look throughout the document and cant see anywhere that says my benefit is only payable on return of your monthly certificates. the closest thing i can find that assists [Resolution Life] is clause 15 which says that if circumstances require, evidence of continued qualification for the payment of any benefit under the policy as the insurer may reasonably require.
[33] I return to clause 15 of the Policy, which indeed addresses the topic of evidence of continued qualification, below.
[34]Mr Fletcher’s 13 August 2013 email continued, with the following suggestion:
Is there a better way that we can do things? [Resolution Life] have accepted my claim and withdrawn rehabilitation on the basis that it is unlikely i will return to work. i dont mind filling in your forms but i dont see anywhere in the policy that [Resolution Life] can withhold my benefit until i have done so.
given my recovery prognosis i wonder if there is a need for monthly forms at all. i think it would be good if we could meet to clear the air and set up a better system going forward. there are a number of aspects of my policy that i think we both need to be on a common footing with.
[35] Resolution Life takes issue with Mr Fletcher’s assertion that it had “withdrawn rehabilitation”. And in September 2013, it advised that it had received legal advice to the effect that “ongoing reporting is a contractual requirement to determine whether [Mr Fletcher] is totally disabled”. But there is no dispute that, from this point, changes were made to the regularity with which PCFs were sought and the manner in which
they were provided. Eventually, Resolution Life arranged to make benefit payments at lengthier intervals, and in advance. It made a first payment in September 2014, for the period from 1 September 2014 to 31 July 2015. And a second payment in August 2015, mistakenly of 13 months, for the 12-month period from 1 August 2015 to 31 July 2016.
[36] Advance payments continued to be made, in 2016 to 2018. During this period, Resolution Life obtained medical updates in various forms. For example, on 23 April 2018, Mr Fletcher provided copies of his GP’s medical notes for the period from June 2017 to April 2018, and letters from Dr Newburn dated 20 March, 15 June and 8 November 2017, and 21 March 2018.
[37] The advance payment of 2019 was also made. However, it was delayed by several weeks by unresolved correspondence between Resolution Life and Mr Fletcher on the topic of its acquisition of medical information about him.
[38] In July 2019, Mr Fletcher provided PCFs that both he and Dr Newburn had completed. Mr Fletcher’s PCF confirmed he had not been working, reported no treatment or rehabilitation activity, and left various pre-printed questions unanswered. And it indicated, as Mr Fletcher confirmed separately, that he no longer consented to Resolution Life obtaining his GP’s medical notes. Dr Newburn’s PCF confirmed his opinion that Mr Fletcher remained unable to return to the practice of law, due to traumatic brain injury.
[39] Resolution Life’s entitlement to medical information about Mr Fletcher remained the subject of correspondence. By letter dated 17 December 2019, Resolution Life referred to clause 15 of the Policy and insisted on:
(a)being provided with Mr Fletcher’s clinical records (his GP’s notes and Dr Newburn’s letters reporting to his GP), and completed PCFs; and
(b)Mr Fletcher checking in by phone every three to four months with the Resolution Life employee who was managing his case.
[40] Mr Fletcher wrote back, disagreeing with Resolution Life’s interpretation of clause 15, and asserting that Dr Newburn’s PCFs met the clause’s requirement of “such evidence of continued qualification … as the insurer may reasonably require”.
[41] In April 2020, Resolution Life again invited its chief medical officer, Dr Robinson, to consider Mr Fletcher’s claim. It asked whether he was “comfortable with the current diagnosis”, whether the information it had received “supports current and ongoing incapacity to work”, and whether he would “recommend any further assessments” or had further recommendations “in regards to ongoing assessment and rehabilitation”. In an initial, informal response, Dr Robinson advised “I’ve believed all along we need a second opinion on this one”. Later, he added that:
In my opinion we need
1. Neuropsychologist review – I would go to Ralph Schnabel
2. Psychiatrist Prof Rob Kydd
3. Occ Med Prof Des Gorman
These three have worked together on head injury patients – I’ve spoken to Des who is happy to be involved and he suggested Ralph and Rob. Given the potential legal activity if you wish to go down this line I’ll contact them.
I would leave the question of a neurologist to after testing.
[42] In May 2020, Dr Robinson responded affirmatively to Resolution Life’s self-serving request, that he confirm that up to date clinical records and fully completed PCFs were “reasonably required” for the purpose of “full and proper review” of Mr Fletcher’s claim.
[43] In its evidence and submissions, Resolution Life asserted that Dr Robinson recommended “independent medical examinations” or “IMEs”. I understand the term may commonly be used in the insurance industry, essentially to signify medical examination separately from the examinations conducted by the insured person’s usual physician(s). The term tends to imply that such examinations are independent, not only of the insured, but also of the insurer. Whether that is the case in practice is not guaranteed. In any event, Dr Robinson did not use the term during this phase of the dispute. Since the issue for the Court is whether Resolution Life was entitled to the particular additional medical examinations it came shortly to seek, I too refrain from
describing them generically as “independent medical examinations” or “IMEs” (unless reporting evidence where that term was used), intending to avoid distraction.
[44] On 18 May 2020, Resolution Life wrote to Mr Fletcher, asserting that clause 15 of the Policy entitled it to such “evidence of continued qualification ‘…as the [i]nsurer may reasonably require’”, and that Dr Robinson had sought neuropsychological, psychiatric and (if needed) occupational medicine IMEs. It advised that it would arrange the assessments at its own expense. It also sought Mr Fletcher’s medical records to date, and financial information such as tax summaries for 2018 and 2019.
[45] Resolution Life’s 18 May 2020 letter concluded by observing that its previous benefit payment covered the period to 31 July 2020, and its “ability to make any further payment” might be affected if the information sought had not been provided by then.
[46] Mr Fletcher telephoned a Resolution Life claims manager the next day. The call was fractious. Mr Fletcher conveyed that he was reluctant to provide additional information or attend the requested assessments before receiving a view from the Privacy Commissioner on Resolution Life’s entitlement to require them.
[47] At this stage, the relationship between Resolution Life and Mr Fletcher had largely broken down. Mr Fletcher retained legal advisors. I infer, from the way in which Resolution Life sought in correspondence (including with Dr Robinson) to position itself by reference to clause 15, that it had done so some months before. Further, Resolution Life was advised that Mr Fletcher’s safety was jeopardised by his state of mind. And Lawlink’s broker, Marsh, came more to prominence as an intermediary in communications. The various views that the parties expressed over Resolution Life’s entitlement to medical information, certainly from this time on, are in the nature of advocacy and are of little relevance to the Court’s determination of that issue.
[48] On 30 July 2020, Marsh provided Resolution Life with updated PCFs (albeit Mr Fletcher had expressly declined to sign Resolution Life’s pre-printed authorisation that it might collect his medical information from other sources), letters from
Mr Fletcher’s physicians, and certain financial information. However, Resolution Life was not provided with the medical records it had requested in its 18 May 2020 letter, nor Mr Fletcher’s agreement to attend additional assessments.
[49] By letter dated 31 July 2020, Resolution Life advised that, not having received the material it had requested, it was “not able to make any further payments at this time”. Accordingly, as mentioned above, the last benefit payment Resolution Life made was in July 2019. The payment had been made in advance, to cover the period ending 31 July 2020.
Does the Policy operate to entitle Resolution Life to information that Lawlink does not possess?
Production of information
[50] As indicated above, the Policy provides for the production of information, by Lawlink to Resolution Life, upon a Life Insured becoming entitled to receive a benefit. It does so at clause 15, which reads as follows:
Procedure on a Benefit Becoming Payable
The Proposers shall as soon as practicable after the event give notice to the Insurer of any circumstances which entitles a Life Insured to receive a benefit under the Policy in respect of the Life Insured and supply all necessary information within their knowledge and give all assistance within their power to enable the Insurer to make any payment in respect of that Life Insured and the Proposers shall produce such evidence of qualification and, if the circumstances require, of continued qualification for the payment of any benefit under the Policy as the Insurer may reasonably require.
[51] This obligation to produce information, cast upon Lawlink as the Proposers, can be conceived of as comprising three parts:
(a)the obligation to give notice of circumstances which entitle a Life Insured to receive a benefit;
(b)the obligation to “supply all necessary information within their knowledge and give all assistance within their power to enable [Resolution Life] to make any payment” to a Life Insured entitled to a benefit; and
(c)the obligation to “produce such evidence of qualification and, if the circumstances require, of continued qualification for the payment of any benefit under the Policy as [Resolution Life] may reasonably require”.
Mr Fletcher’s position
[52] Mr Fletcher stresses that the obligation to produce information under clause 15 is cast upon Lawlink. He submits that this limits the scope of the information to which Resolution Life is entitled; that is, the information must be information within the control of Lawlink, or within Lawlink’s power to obtain.
[53] Thus, if a Life Insured who has qualified for a benefit voluntarily provides information of continued qualification to Lawlink, Resolution Life may require Lawlink to provide it. But if a Life Insured declines to provide information sought by Resolution Life, and the information is not already held by Lawlink, it cannot be required under clause 15.
[54] Further, since the Policy contains no other provision addressing the procurement of information of continued qualification, Resolution Life is bound to assess the question of continued qualification in light only of the information held by Lawlink, or otherwise volunteered by the Life Insured.
[55] Mr Fletcher submitted that the Policy, and the payment of his total disability benefit, operated upon this basis of voluntarily provided medical information, from the inception of his claim in 2011 until 2020. He says that to interpret the Policy as permitting Resolution Life to require medical information from him, failing which it might be entitled to cease paying benefits, would involve the improper implication of terms that do not exist. And he says that Resolution Life should not be permitted to amend the way in which he has become accustomed to the Policy operating.
Discussion
[56] Proper interpretation of the Policy, including clause 15, requires an objective approach. As Arnold J observed for a majority of the Supreme Court in Firm PI 1 Ltd v Zurich Australian Insurance Ltd:1
[T]he aim [is] to ascertain “the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”.
[57]Further:2
While context is a necessary element of the interpretive process and the focus is on interpreting the document rather than particular words, the text remains centrally important. If the language at issue, construed in the context of the contract as a whole, has an ordinary and natural meaning, that will be a powerful, albeit not conclusive, indicator of what the parties meant. But the wider context may point to some interpretation other than the most obvious one and may also assist in determining the meaning intended in cases of ambiguity or uncertainty.
[58] Addressing the ordinary and natural meaning of the language of clause 15, it may be noticed that the second part of Lawlink’s obligations, described at [51](b) and directed towards enabling Resolution Life to make payments, is limited to supplying information “within their knowledge” and giving assistance “within their power”. However, the third part of Lawlink’s obligations, described at [51](c) and directed towards the questions of qualification and continued qualification for the payment of benefits, is not limited by reference to Lawlink’s capacities. On the face of clause 15’s language, Lawlink must, if the circumstances require, produce any evidence of continued qualification that Resolution Life may reasonably require. That is, whereas Lawlink is obliged to facilitate the mechanics of payment only to the extent it can provide information or otherwise assist, Lawlink’s obligation to provide reasonably required evidence of continued qualification is unlimited. If Resolution Life reasonably requires evidence of continued qualification, Lawlink is obliged to provide it, whether it possesses or has an entitlement to obtain the information or not.
1 Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60], citing Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (HL) at 912 per Lord Hoffman.
2 At [63].
[59] This interpretation of the language of clause 15 is consistent with the context in which it appears, both in terms of the balance of the Policy and the background against which it was entered.
[60] Addressing the balance of the Policy, and as observed above (see [15] to [17]), the benefits payable in the event of total disability were subject to exception, such as in the event of self-injury or fraud, and were durationally limited in the event the total disability ceased. Clause 15 thus appears in the context of a Policy which founds Resolution Life’s liability to pay benefits upon the continued qualification of Lives Insured to receive them, such as in the event of ongoing total disability. Clause 15 must therefore play a key role in facilitating the operation of the Policy according to its terms. If a Life Insured has ceased to be totally disabled, or an exception to their entitlement under the Policy has arisen, a reasonable demand for information should confirm the position. But if the scope of Resolution Life’s entitlement to reasonably required information is limited to information that Lawlink possesses or may (independently of the Policy) demand from those receiving benefits, the efficacy of the Policy risks being seriously undermined.
[61] And addressing the background against which the Policy was entered, it might be said that it sprang from Lawlink’s business objective of supporting the interests of its member law firms. Lawlink advanced that objective by entering a group insurance policy, contracting with Resolution Life for the benefit of its members and their partners and staff. Lawlink is not required, for the purposes of its business, to know or to have access to information confirming whether its members’ current or former partners and staff may or may not be totally disabled from undertaking their work. The background to the Policy accordingly suggests that the scope of Resolution Life’s entitlement to information of continued qualification should not be tied arbitrarily to the extent of Lawlink’s ability to access such information.
[62]As Mr Bigio KC put it for Lawlink:
The Policy could not operate for the benefit of Lives Insured if they did not provide information to support their claim for a benefit. It follows, that if the Life Insured ultimately must provide the necessary information to obtain a benefit in the first place, the Life Insured must also provide the evidence to support the continuation of the claim.
In other words, while strict compliance with the procedural aspect of the third limb of clause 15 might require [Resolution Life] to request the information it seeks from Lawlink, it is the Life Insured who bears the burden of substantive compliance.
Conclusion
[63] Overall, I find that clause 15 obliges Lawlink to “produce such evidence … of [Mr Fletcher’s] continued qualification for the payment of [his total disability benefit] as [Resolution Life] may reasonably require”. The scope of Lawlink’s obligation is not confined to material held or accessible by Lawlink, or to material that Mr Fletcher chooses to volunteer. Resolution Life is indeed entitled to information that Lawlink does not possess (and has no power of its own to acquire).
[64] Further, nothing in the history of Mr Fletcher’s claim suggests that Resolution Life resiled from its entitlement to information reasonably required under clause 15. Accordingly, there can be no injustice (nor estoppel) arising in respect of any demand for evidence complying with that provision.
[65] In making this finding, I have not included the phrase “if the circumstances require”. In my view, that phrase was likely inserted for the purpose of confirming that Resolution Life may require evidence of continued qualification on an ongoing basis. Some forms of total disability can be known, shortly after the disability has arisen, to be permanent, or conceivably limited to a particular period. The “circumstances” of such cases will not require ongoing review of the insured person’s continued qualification. But since, in any event, evidence of continued qualification can only under clause 15 be required “reasonably”, the phrase “if the circumstances require” adds nothing of significance to the clause’s meaning. Plainly, some forms of disability will reasonably require more evidence of continued qualification than others.
Did the Policy entitle Resolution Life to require Mr Fletcher’s medical records and that he attend the specified additional medical examinations?
[66] In light of my finding at [63], the question whether Resolution Life was entitled to require Mr Fletcher’s medical records, and that he attend the additional medical examinations that it specified in its 18 May 2020 letter, turns on whether these things
amount, in terms of clause 15, to “evidence… of continued qualification” that it required “reasonably”.
Resolution Life’s evidence of the reasonableness of requiring medical records and additional medical examinations
[67] During the trial in this proceeding, Dr Robinson gave evidence of the reasoning that informed his May 2020 recommendation, of neuropsychological, psychiatric and occupational medicine examination, additional and separate to that undertaken by Mr Fletcher’s usual physicians. Inherent within Dr Robinson’s evidence was his opinion that his recommendation was reasonable. But it was nevertheless necessary that Dr Robinson should offer the reasoning that informed his recommendation, so that the Court could assess its reasonableness. In the latter sense, Dr Robinson gave undoubtedly admissible evidence, as a witness of fact.
[68] On the other hand, and notwithstanding Dr Robinson’s considerable qualifications and experience, I accept Mr Fletcher’s objection to the admissibility of Dr Robinson’s evidence, to the extent that it might be considered expert evidence that the examinations he recommended were reasonably required. Dr Robinson’s position as Resolution Life’s chief medical officer means that his opinion of the reasonableness of his own recommendation is not substantially helpful,3 and disqualifies him from offering evidence upon, that ultimate issue.
[69]Dr Robinson’s evidence was that:
(a)It was highly unusual that, by early 2020, Mr Fletcher had not recovered or returned to work following a brain injury of the type observed by Mr Fletcher’s physicians in 2011.
(b)The inconsistency between this and the recovery prognoses of Dr Shaw and Dr Ruttenberg, offered in 2011 and 2012, suggested the possibility of Mr Fletcher’s recent symptoms having other causes.
3 Evidence Act 2006, s 25(1).
(c)In any event, Mr Fletcher’s recently reported symptoms were self-reported, non-specific and unverified by medical testing. Indeed, Mr Fletcher had not been medically examined, independently of Dr Newburn. Dr Robinson considered examination independently of an insured person’s physician to be important in the context of an ongoing income protection insurance claim.
[70] Further, Dr Robinson said in evidence that he considered that all (not just some) of Mr Fletcher’s clinical records were required to provide a holistic view of a person’s health.
[71] Resolution Life called further evidence of the reasonableness of the requirements set out in its 18 May 2020 letter. This evidence was given by expert witnesses Dr Rudi Kritzinger (a psychiatrist specialising in neuropsychiatry), Dr Shaw (the neuropsychologist who examined Mr Fletcher on behalf of ACC in July 2011), and Dr Andrew Hilliard (a specialist occupational physician).
[72]Dr Kritzinger’s evidence was that, in his view:
(a)A person suffering the kind of brain injury reported in 2011 would typically recover within around three to six months.
(b)Dr Newburn’s examinations and assessment (including that set out in his 24 July 2020 letter) did not provide sufficient assurance of Mr Fletcher’s condition. Dr Newburn’s approach relies on self-reported, non-specific symptoms, and reports a range of cognitive issues without the benefit of detailed cognitive testing beyond that undertaken by Dr Shaw in 2011. In any event, it would be unusual for the behavioural issues reported by Dr Newburn to be caused by Mr Fletcher’s type of brain injury. The lack of independent assessment of Mr Fletcher’s symptoms for many years gave rise to a risk that Dr Newburn had lost objectivity.
(c)In any event, in cases of persisting head injury-related disability, a multi-disciplinary approach to assessment, involving neurological, neuropsychiatric and neuropsychological opinion, is necessary.
[73] Dr Shaw gave evidence that, in her view, the material available to Resolution Life in July 2020 did not provide a sufficient basis for confidence in Mr Fletcher’s diagnosis by Dr Newburn. She similarly cited the self-reported and non-specific nature of Mr Fletcher’s symptoms, and their lack of alignment with the expected recovery of someone with the injury reported in 2011. She drew attention to the lack of clear connection between the injury and the behavioural, emotional and physical issues reported by Dr Newburn. Dr Shaw considered it important, given Mr Fletcher’s reported lack of recovery, that in-person neuropsychological assessment, psychiatric assessment, and possibly neurological assessment, were undertaken by specialists independent of Dr Newburn.
[74]Dr Hilliard gave evidence that, in his view:
(a)The specialist reports available as to Mr Fletcher’s occupational capacity were, as of July 2020, out of date.
(b)Medical reporting by Dr Newburn and Mr Fletcher’s GP did not provide a sufficient basis on which Resolution Life might be properly informed as to Mr Fletcher’s continued qualification on the basis of his inability to engage in his usual profession, business or occupation for more than 10 hours per week.
(c)In forming an expert opinion on Mr Fletcher’s capacity to work in 2020, he would have required that Mr Fletcher be assessed by both an independent neuropsychiatrist and an independent neuropsychologist. In this regard, he observed that he would have expected a patient with Mr Fletcher’s injury to have had their symptoms resolve within three to six months at most. On that basis, he disagreed with Dr Newburn’s description of Resolution Life’s request that Mr Fletcher be examined by other physicians as surprising.
[75] Like Dr Shaw, Dr Hilliard considered it important, should he be asked to assess Mr Fletcher, that he sees Mr Fletcher’s GP’s records.
Mr Fletcher’s position
[76] Mr Fletcher submits that, for essentially two reasons, Resolution Life cannot require additional medical examination:
(a)First, Mr Fletcher’s attendance for examination does not amount, in terms of clause 15 of the Policy, to “producing … evidence” of his continued qualification. Mr Fletcher says his attendance would not, of itself, amount to “evidence”. Instead, it would be the opinions of the additional medical examiners that would follow his examination, which would amount to “evidence”. Since those opinions would be evidence obtained by Resolution Life, the process cannot qualify as the production of evidence under clause 15.
(b)Second, Mr Fletcher submits that Dr Newburn’s opinion establishes that he remains, in terms of the Policy, totally disabled. He has not returned, and is unlikely ever to be capable of returning, to work as a partner in a law firm. And he remains under the “continuous direction and professional care” of his physicians. Indeed, Mr Fletcher submits that Resolution Life accepted, as from around 2013, that he would not return to his usual profession, business or occupation. Accordingly, in light of Dr Newburn’s opinion, and Resolution Life’s acceptance of that opinion over a period of years prior to its 18 May 2020 letter, additional medical examination cannot be required “reasonably”.
Attendance for examination forms necessary part of the production of “evidence”
[77] The question whether requiring additional medical examination amounts, in terms of clause 15 of the Policy, to requiring the production of “evidence” is again a question of contractual interpretation, to be resolved objectively, on the basis of the meaning conveyed to a reasonable reader having all the background knowledge reasonably available to the contracting parties (see [56]–[57] above).
[78]In my view, the reasonable reader of clause 15 would be mindful that:
(a)the question of the continued qualification of a person entitled to benefits under the Policy is of fundamental significance to that entitlement; and
(b)the thrust of the clause is to permit Resolution Life access to information that it reasonably considers it needs in order to reach a fairly informed view of its liability to pay ongoing benefits.
[79] On that basis, I consider the reasonable reader’s focus, when considering whether the clause entitles Resolution Life to require additional medical examination, would be upon the question whether Resolution Life might reasonably consider access to the information generated by additional medical examination to be necessary. In other words, the reader would regard the conceptual boundaries of the “evidence” that Resolution Life might require to be limited more by the notion of what, in the circumstances of the individual case, is reasonable, than by strict analysis of what might qualify linguistically as “evidence”.
[80] In short, under clause 15, Resolution Life may require the production of appropriately qualified medical opinions, derived from additional medical examinations, so long as it does so reasonably. If such opinions are not produced, a breach of clause 15 follows. In practical terms, Resolution Life may require Mr Fletcher to attend medical examinations as part and parcel of its entitlement to the production of the evidence generated from such examinations.
[81] In making this finding, I note that, in early 2018, there was a discussion between two members of Resolution Life’s claims team about what Resolution Life could require under clause 15 of the Policy. They expressed a view that the clause does not allow Resolution Life to seek additional medical examinations. But the reasoning upon which this view was based is not clear. It carries little value as evidence of what the parties to the Policy should be taken, objectively, to have meant at the time the Policy was entered. I prefer the interpretation outlined above.
Additional examination and assessment reasonably required
[82] Turning to Mr Fletcher’s second, more substantial argument, I find that the additional medical examinations and assessment, described in Resolution Life’s 18 May 2020 letter, were reasonably required.
[83] In making this finding, I recognise the apparent merit of Dr Newburn’s assessment of Mr Fletcher’s condition. Dr Newburn is an eminently qualified neuropsychiatrist, with over forty years’ experience in this subspecialty. He has had significant experience with traumatic brain injuries. Beyond his clinical practice, Dr Newburn works as a Senior Research Fellow at Matai Medical Research Institute, researching brain-behaviour relationships with the use of investigative techniques not widely available elsewhere.
[84] Mr Fletcher has been one of Dr Newburn’s patients since 2011. In the period since then, there have been numerous in-person consultations. Dr Newburn is uniquely qualified to assess and report upon the symptoms Mr Fletcher has described over many years. And Mr Fletcher’s reported recovery trajectory is consistent with that which Dr Newburn described in evidence; that is, a substantial proportion (albeit a minority) of patients suffering mild traumatic brain injury such as that Mr Fletcher reported in 2011 continue to suffer symptoms ten years later. In Dr Newburn’s opinion, “it is entirely unrealistic to expect that [Mr Fletcher] can return to practice as a lawyer” and “this situation is not likely to change”. Dr Newburn’s opinions carry much weight.
[85] However, each of Resolution Life’s expert witnesses gave unchallenged evidence of typical recovery trajectories much better than that Dr Newburn described. And, in any event, Dr Newburn conceded under cross-examination his expectation that, after mild traumatic brain injury, his patients would recover. Further, all of the medical witnesses, including Dr Newburn, confirmed the risk of patients’ regular physicians unconsciously losing objectivity, or making unintended diagnostic error, and thus the desirability of obtaining second opinions in cases that do not conform to expectations.
[86] Contrary to Mr Fletcher’s submission, Resolution Life never accepted that he would forever continue to qualify for benefit payments. Instead, while Resolution Life tolerated Mr Fletcher’s refusal to attend the additional neuropsychological review by Dr Schnabel that Dr Robinson recommended in 2012, it nevertheless consistently required PCFs, in that way making it clear that it required evidence to support his continued qualification.
[87] As should be obvious, I intend to pass no comment upon the separate question whether Mr Fletcher remains “totally disabled” in terms of the Policy. But, in light of the factors just outlined, I consider it clear that additional medical examination and assessment was, in 2020, nine years after Mr Fletcher’s accident, required reasonably.
[88] Further, I accept the evidence of Resolution Life’s experts to the effect that access to all of Mr Fletcher’s medical records would form a necessary part of additional examination and assessment. In light of Mr Fletcher’s specific circumstances and the unusual trajectory of his recovery, I find that it was similarly reasonable to require all of his medical records.
Does Mr Fletcher’s refusal to authorise provision of his medical records, and to attend additional examinations, entitle Resolution Life to cease paying benefits?
Mr Fletcher’s position
[89] Mr Fletcher submits that the Policy’s provisions, requiring Resolution Life to pay benefits in the event of total disablement, permit the cessation of such benefits only in the event such total disablement “ceases”, in terms of clause 2 of its Second Schedule. Nothing in the Policy provides Resolution Life an entitlement to cease paying benefits on the ground of non-compliance with clause 15. Accordingly, Resolution Life must have proof that a Life Insured has ceased to be totally disabled, before ceasing to pay ongoing benefits. In the absence in this case of such proof, Resolution Life has no alternative but to accept Dr Newburn’s assessment, and to continue paying benefits under the Policy until evidence of disqualification emerges.
Discussion
[90] I accept that neither clause 15 itself nor any other provision of the Policy expresses the consequence of a breach of clause 15. But this point begs the question: what is it that a reasonable and informed reader of the Policy would understand the parties, Resolution Life and Lawlink, to have agreed would be the consequence of a breach of clause 15?
[91] In addressing this question, it should first be observed that a breach of clause 15 is necessarily comprised of a failure to provide Resolution Life with such evidence of continued qualification as it “reasonably requires”. In other words, in the event of a breach of clause 15, Resolution Life will not possess the information it reasonably requires in order to decide whether it is obliged to continue paying benefits.
[92] In my view, clause 15 must be understood, objectively, as a condition precedent to Resolution Life’s liability to pay benefits under the Second Schedule of the Policy. The alternative is that the parties contracted on the basis that Resolution Life would be obliged to speculate whether benefits were payable, and that they would face the prospect of litigating to determine the issue conclusively, relying upon the courts’ processes (including of discovery and (potentially) interrogatories) to resolve the issue conclusively.
[93] The Policy and its meaning, in this regard, is substantially similar to that described in Napier v UNUM Ltd, where a former Lloyd’s underwriter sued in the Queen’s Bench Division under a professional disability insurance policy.4
[94] In that case, the policy contained provisions providing for the payment of benefits “on production of proof satisfactory to [the insurer]”,5 and for the admission and continuation of claims to be “subject to such information and medical evidence as [the insurer] may require”,6 with the insurer entitled to “call for examination of the
4 Napier v UNUM Ltd [1996] 2 Lloyd’s Rep 550 (QB).
5 At 550.
6 At 550.
insured by a medical officer appointed by them”.7 To this extent the policy was far more explicit than the Policy in the present case.
[95] Nevertheless, in Napier, Tuckey J distinguished between the evidence that insurers can call for to support a claim — what the Judge called “vouching” — and the insurers’ own evaluation of that evidence. And in respect of the former (the “vouching” mechanism), Tuckey J observed:8
Obviously one expects to find in a policy such as this, as a condition precedent to the insurers’ liability to pay, a requirement that they should be provided (production) with all the information (proof) as they may (reasonably) require. The policy secures this objective by the proof satisfactory condition and condition 4 [the provisions described at [94] above] which are self-evidently overlapping and complimentary provisions.
[96] In my view, the observation that “obviously one expects” to find “vouching” provisions, as conditions precedent to insurers’ liability to pay benefits, confirms that a reasonable reader of clause 15 of the Policy in the present case would understand the parties to have agreed that benefits need not be paid, in the event reasonably required evidence of continued qualification is not produced.
[97] I find, therefore, that while Mr Fletcher declined to comply with the requirements of Resolution Life’s 18 May 2020 letter, Resolution Life was entitled not to continue to pay him benefits under the Policy.
What are the consequences of these findings for Mr Fletcher’s claims?
[98] To determine the consequences of these findings requires consideration of Mr Fletcher’s eight causes of action in more detail. His first and second causes of action are addressed to Lawlink. I will return to these later.
[99] Mr Fletcher’s third cause of action alleges that the Policy, despite being entered between Resolution Life and Lawlink, confers a benefit directly upon him, as a Life Insured entitled to benefit payments. My finding, that Resolution Life was entitled not to continue to pay Mr Fletcher a benefit under the Policy, at least until
7 At 550.
8 At 553.
such time as he complies with its reasonable requirements set out in its 18 May 2020 letter, disposes of this allegation. I note, however, that this cause of action is also contradicted by clause 19 of the Policy, which provides as follows:
Clause 19 Contractual Rights
[Resolution Life] and [Lawlink] declare that the provisions of the Policy and this Proposal (but excluding clause 20 hereof) are not intended to constitute promises which confer benefits which are enforceable by any Life Insured or any other person for whose benefit any benefits are by this Proposal expressed to be payable and accordingly in relation to such provisions the provisions of the Contracts (Privity) Act 1982 are not intended to apply to the Life Insured or such other persons.
[100] Mr Fletcher’s fourth to eighth causes of action rely substantially upon his essential allegation that, despite his refusal to comply with its 18 May 2020 letter, Resolution Life was not entitled to cease paying a benefit. Again, my findings dispose of that allegation, and the substance of these causes of action. For example, Mr Fletcher is not entitled to general damages “associated with [his] claim being declined”. I note also, for the avoidance of doubt, that ancillary aspects of these causes of action cannot succeed:
(a)His actions under the Fair Trading Act 1986 have not established misleading or deceptive conduct on the part of Resolution Life, including by engaging in communication directly with him, nor coercion, since Resolution Life had done so only for the purpose of meeting its obligations and securing its entitlements under the Policy.
(b)Resolution Life cannot be considered to have been negligent, by asserting its entitlements, and is not estopped from doing so on the basis of any special disadvantage that Mr Fletcher may be subject to as a consequence of his injury.
[101] Returning, then, to Mr Fletcher’s first and second causes of action, addressed to Lawlink, they each derive from clause 19 (reproduced above) at [99] and clause 20, which provides as follows:
Clause 20 Declaration of Trust
[Lawlink] HEREBY DECLARE that they will hold the Policy and all benefits payable to or received by them thereunder in trust for the person in respect of whom such benefits are by this Proposal expressed to be payable.
[102]In light of clauses 19 and 20, Mr Fletcher alleges:
(a)as a first cause of action, a breach of contract on the part of Lawlink, in respect of its obligations under the Policy; and
(b)as a second cause of action, a breach of trust, occasioned by Lawlink’s failure as a trustee of the Policy to exercise its powers as trustee properly, and broadly speaking, for his benefit as a life insured.
[103] Again, my findings that Resolution Life was entitled to cease paying benefits while Mr Fletcher declined to meet the requirements of its 18 May 2020 letter disposes of these causes of action. Lawlink could not be obliged, either as a party to the Policy or trustee holding the policy, to require Resolution Life to act otherwise than in accordance with its entitlements. And, in respect of the first cause of action (in contract), Lawlink’s case, that in light of clause 19 Mr Fletcher has no entitlement to sue under the contract, is plainly correct.
[104] I note, however, that, had I found Resolution Life to have been bound by its Policy with Lawlink to continue paying benefits in respect of Mr Fletcher, I would have found it difficult to accept Lawlink’s submission that it was not liable in respect of the second cause of action (for breach of trust). The submission was, in essence, that Lawlink’s declaration of trust pursuant to clause 20 went no further than a “bare declaration”, establishing it as “a bare trustee without the suite of duties and obligations which [Mr Fletcher] claims are owed to him”.
[105] To the contrary, I consider it likely that in making its declaration of trust Lawlink assumed the duties of trustees arising under the Trusts Act 2019, including
the s 26 duty to act for the beneficiary’s benefit or to further the permitted purpose of the trust. Since an essential purpose of the Policy was to provide benefits to Lawlink member firms’ partners and staff in the event of qualification for their payment, it can be expected that, by declaring it held the Policy in trust, Lawlink might assume a responsibility to act so that such benefits were paid. Without it, there seems little justification in Lawlink member firms meeting Policy premiums.
[106] The situation can, in my view, be distinguished from that of a bare trustee, whose obligation is simply to convey property the subject of a bare trust to their beneficiary. In the present case there could be no question of Lawlink conveying its entitlement under the policy to a Life Insured such as Mr Fletcher. The enduring nature of the trust over the Policy in the event of qualification is likely, in my view, therefore to have brought with it an enduring obligation to ensure that the Policy’s provisions are complied with.
Result
[107] In light of the above findings, each of Mr Fletcher’s causes of action are dismissed.
[108] In the ordinary course, it might be expected that Mr Fletcher is accordingly liable to pay costs. I note, however, that this judgment does not address the underlying issue of Resolution Life’s obligation to pay Mr Fletcher total disability benefits, should it be provided with information that it reasonably requires in order to determine his continued qualification for that benefit. Given that aspect, I intend to allow Mr Fletcher an extended period in which to reflect on his refusal to provide medical records and attend medical examinations. If, following expiry of that period, Mr Fletcher maintains his current position, the question of costs should be settled without further delay.
[109]Accordingly, should the issue of costs remain outstanding on 21 March 2025:
(a)Resolution Life is to file and serve submissions of no more than seven pages in length, addressing its position on costs, by 5 pm on Friday, 4 April 2025;
(b)Lawlink is to file and serve a similar memorandum, by 5 pm on
Friday, 18 April 2025; and
(c)Mr Fletcher is to file and serve a similar memorandum, by 5 pm on
Friday, 2 May 2025.
[110]I will determine the issue of costs thereafter on the papers.
Johnstone J
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