Fletcher v the LawLink Group Limited
[2021] NZHC 3543
•17 December 2021
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2021-470-000071
[2021] NZHC 3543
BETWEEN DARRYL JOHN FLETCHER
Plaintiff
AND
THE LAWLINK GROUP LIMITED
First Defendant
AND
AMP LIFE LIMITED
Second Defendant
Hearing: 3 November 2021 (by AVL) Appearances:
T C Gunn for Plaintiff
K S Deobhakta for First Defendant D J Friar for Second Defendant
Judgment:
17 December 2021
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 17 December 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
FLETCHER v THE LAWLINK GROUP LTD [2021] NZHC 3543 [17 December 2021]
[1] The plaintiff (Mr Fletcher) considers AMP Life Ltd (AMP) breached a group income continuance policy when it stopped payment to him of a total disability benefit. Mr Fletcher sues for breach of contract to recover the benefit and general damages. He also pleads against AMP alternative causes of action alleging breach of s 9 of the Fair Trading Act 1986 and negligence.
[2] AMP applies for summary judgment. AMP argues none of Mr Fletcher’s claims can succeed because it had no obligation to continue payment of the benefit when Mr Fletcher breached a condition of the policy to provide evidence necessary to assess his ongoing entitlement.
[3] Counsel for the first defendant, The Lawlink Group Ltd (Lawlink), who Mr Fletcher also sues, attended the hearing to observe.
The background
[4] Mr Fletcher is a former lawyer and partner at Sharp Tudhope Lawyers, Tauranga. That firm was a member of Lawlink. Lawlink carries on business as a network of independent law firms.
[5] In or around February 1988, Lawlink (as Proposer) and National Mutual Life Association of Australasia Ltd (as Insurer) entered into a group income continuance policy of insurance, which in subsequent years was amended several times. It is said the relevant policy wording for present purposes came into force on 1 October 2009 (which I will refer to as “the Policy”).
[6] AMP has assumed responsibility over all claims under or in connection with the Policy from National Mutual.
[7] Certain partners and employees of Lawlink firms qualified to be nominated as Life Insureds and therefore covered under the terms of the Policy. Mr Fletcher was one such person. It appears Mr Fletcher was nominated as a Life Insured by Lawlink in 2008.
[8] The Policy provides personal sickness and accident cover for the benefit of Lawlink. Relevantly, it provides income protection in the event that a Life Insured is totally disabled.
[9] AMP has produced what it says is the policy wording. Relevant terms for present purposes are the following:
(a)Clause 1 of the second schedule provides:
1. Amount of Benefit – Total Disablement
If a Life Insured becomes Totally Disabled while in the Service before the Life Insured’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.
(b)There is no definition of “Totally Disabled” but “Total Disablement” is defined in the first schedule as:
“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.
(c)Clause 2 of the second schedule, concerns the duration of payment of a benefit as follows:
2. Duration of Payment of Benefit
The Personal Sickness or Accident Benefit commences to be payable on the first day of Total Disablement following the expiration of the Qualifying Period and shall be payable by monthly instalments … and
the last instalment shall fall due on the first day of the month next following the first to occur of the following events
–(a) the Life Insured ceases to be Totally Disabled; …
…
(d)Related to this, cl 5 of the second schedule provides:
5. Treatment of Disablement
The Personal Sickness or Accident Benefit shall not be payable in respect of any period of Total Disablement for which the Life Insured is not receiving and following medical advice from a registered medical practitioner.
(e)Clause 15, which is of singular importance on this application, concerns the Proposers’ obligation to notify a claim and supply information, evidence and assistance to the Insurer in relation to it. It provides:
15. 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.
[10] In 2011, Mr Fletcher suffered a head injury. Lawlink made a claim under the Policy in relation to Mr Fletcher’s injury. The claim was accepted.
[11] Between 2011 and mid-2019, Mr Fletcher received a benefit under the Policy on the basis he was totally disabled as a result of accident. Although such a benefit was payable by monthly instalments, AMP has made payments annually in advance. AMP made its last annual payment to Mr Fletcher on 30 July 2019.
[12] From time to time, Mr Fletcher provided information to AMP to support his continued entitlement to the benefit. For instance, in 2018, Mr Fletcher provided AMP with his patient medical history from his General Practitioner (GP) for the period 8 June 2017 to 23 April 2018 along with copies of correspondence from his
neuropsychiatrist, Dr Newburn, to the Accident Compensation Corporation (ACC) and his GP, Dr Sumpton.
[13] In 2019, AMP reviewed Lawlink’s claim in relation to Mr Fletcher’s injury. AMP says the review indicated:
(a)it had not received up to date GP medical records from Mr Fletcher since April 2018; and
(b)Mr Fletcher had not been independently medically assessed since 2011/2012.
[14] AMP says from February 2019 it asked Mr Fletcher to provide copies of his GP’s medical records dating from April 2018. On 17 December 2019, AMP wrote to Mr Fletcher advising, in reliance upon cl 15 of the Policy, that the minimum information he was required to provide to enable consideration of paying his entitlement annually in advance was:
(a)copies of his GP’s medical records for the period from July 2018 onwards (which were to include Dr Newburn’s clinical letters) before 1 July 2020;
(b)a scheduled phone check-in with his Case Manager at AMP at 3-4 monthly intervals; and
(c)completed member and medical progress claim forms before 1 July 2020.
[15] On 20 December 2019, Mr Fletcher wrote to AMP asserting, amongst other things, that AMP’s understanding of cl 15 was incorrect and, notably, that if a medical assessment from a specialist such as Dr Newburn provides evidence of qualification for continued payment of the benefit, any request by AMP for further information would be unreasonable and therefore not within the ambit of cl 15.
[16] AMP did not respond to Mr Fletcher until 18 May 2020. When it did, it disagreed it was unreasonable for it to require any information beyond Dr Newburn’s comments because cl 15 entitled it to require such evidence of continued qualification “as AMP Life may reasonably require”. It referred to a medical progress claim form of 25 June 2019 received from Dr Newburn stating it was unclear whether he would expect Mr Fletcher to be able to return to work, and that “this remains a focus of discussion”. AMP advised its Chief Medical Officer had reviewed Dr Newburn’s comments and determined that as part of a full and proper review of the claim, additional independent medical assessments should be undertaken and medical and other records obtained from Mr Fletcher. Importantly, AMP’s requirements had increased. It now required:
(a)Mr Fletcher was to attend for the following independent medical assessments:
(i)a neuropsychological assessment;
(ii)a psychiatric assessment; and
(iii)a review by an occupational medicine specialist (if needed).
(b)As previously requested, Mr Fletcher was to provide:
(i)his GP’s clinical records from August 2018; and
(ii)completed member and medical progress claim forms;
(c)Mr Fletcher was to provide supporting financial information of:
(i)personal tax summaries for 2018 and 2019; and
(ii)confirmation whether he had any further involvement with ACC since 2012 and, if so, in what form.
[17] Mr Fletcher did not accept AMP’s position and expressed his views to Tony Vassiliou (Mr Vassiliou), the Head of Claims at AMP, during a telephone conversation on 19 May 2020. It appears he may also have spoken that day to AMP’s Senior Customer Response Manager and Privacy Officer. He also lodged a complaint with the Privacy Commissioner in respect of AMP’s requirements.
[18] On 19 June 2020, AMP wrote to Mr Fletcher responding to the complaints he had made to Mr Vassiliou and his privacy complaint. AMP maintained its request that Mr Fletcher undergo independent medical assessments was not unreasonable when it was over eight years since the claim had been first assessed and when the independent medical experts at that time had concluded that with rehabilitation and support Mr Fletcher could gradually return to work. AMP said Dr Newburn’s most recent medical progress claim form was not sufficient as confirming Mr Fletcher continued to meet the total disablement criteria in the Policy. It said AMP was entitled to take advice from independent medical experts for the purposes of assisting it to determine whether a benefit was payable under the Policy. It dealt at some length with Mr Fletcher’s privacy complaint. In relation to its proposed next steps, AMP asked Mr Fletcher to return such of his medical and financial records as he was willing to provide in the interim (pending the Privacy Commissioner’s investigation) and it asked him to urgently confirm his willingness to attend medical assessments.
[19] On 30 July 2020, through Lawlink’s lawyers, Mr Fletcher provided documents in support of his continued entitlement under the Policy. The documents were:
(a)Mr Fletcher’s Inland Revenue Department certificates for the 2019 and 2020 years;
(b)progress medical certificate completed by Dr Newburn;
(c)progress claim form completed by Mr Fletcher but amended to remove consent to AMP’s collection and release of Mr Fletcher’s information (which AMP says limits its ability to obtain advice from third party medical professionals about his personal information);
(d)a letter from Mr Fletcher’s GP confirming Mr Fletcher’s condition, symptoms and his attendances with his GP; and
(e)a clinical letter from Dr Newburn of 24 July 2020 confirming Mr Fletcher’s injury and continuing symptoms.
[20] In his letter of 24 July 2020, Dr Newburn advised in respect of Mr Fletcher as follows:
Arising from all of the above, and even assuming no increase in stressors, he is not likely to show significant improvement, and certainly not resolution of symptoms. It is now over nine years since the original injuring event, and while factors and interventions can be put in place to stop deterioration, it is clear whenever there is an increased load and demand on him, his function deteriorates with an increase in symptoms. Thus, he has what would now be seen as a permanent or chronic health condition consequent on traumatic brain injury.
Given the above, it is entirely unrealistic to expect that he can return to practice as a lawyer. Cognitive, behavioural, social and physical consequences of his injuring event would individually and collectively preclude this. While he still retains the intellectual capacity to engage in law, given an understanding of the law and its application, his ability to use this intellect is grossly impeded as a result of the above issues. The situation is not likely to change.
[21] AMP acknowledged receipt of the information provided by Mr Fletcher in a letter to Lawlink of 31 July 2020, but noted the documentation was not in accordance with its requests of 17 December 2019 and 18 May 2020. It also noted it would review the information while waiting for Mr Fletcher’s consent to engage “the necessary independent medical experts”. AMP confirmed it remained of the view that the independent medical assessments were “appropriate and essential”. AMP also advised, as Mr Fletcher had not provided all of the requested information including the independent medical examination reports, AMP was not able to make any further payments at that time.
[22] On 14 August 2020, the Privacy Commissioner issued a response to Mr Fletcher’s complaint. The Commissioner found AMP’s request for Mr Fletcher’s full medical notes, rather than a targeted request for only relevant information, was a breach of the Health Information Privacy Code 1994. However, the Commissioner considered it reasonable to require an insured to participate periodically in an
assessment and review of their medical status, including asking the insured to undertake medical assessments.
[23] On 13 January 2021, Mr Fletcher wrote to AMP requesting the payment of this benefit under the Policy be reinstated. He said, given the conclusion of Dr Newburn, AMP possessed clear evidence that he meets the eligibility criteria under the Policy which AMP had neither refuted nor accepted. He also argued AMP’s interpretation of cl 15 was incorrect in several respects. He said he had no obligation to provide AMP with evidence of his eligibility as that was the obligation of Lawlink. Further, the requirement that Lawlink produce “evidence” did not extend to “medical assessments”. He wrote:
Clause 15 of the policy requires evidence not an assessment. It also requires that evidence to be produced by Lawlink and not AMP nor myself for that matter. AMP cannot require something that is not provided for in the policy.
Clause 15 requires evidence of continued qualification. Regardless of what the medical assessments concluded, Lawlink would not be obliged to provide them to AMP under cl 15 unless they could be elevated to evidence of continued qualification.
[24] On 20 January 2021, AMP wrote to Mr Fletcher stating that as a result of his continued refusal to provide an authority to AMP to discuss his claim with external medical professionals, provide relevant medical records and attend independent medical examinations, AMP was unable to confirm Lawlink’s eligibility for any benefits under the Policy with respect to Mr Fletcher from 1 August 2018 onwards. It stated, in the absence of the medical evidence that AMP required “all benefit payments ceased on 30 July 2020 and the claim remains closed”. Mr Fletcher was encouraged to reconsider his position and comply with AMP’s requirements failing which it would be unable to progress the matter further.
[25] On 18 June 2021 Mr Fletcher commenced this proceeding. AMP filed its defence on 29 July 2021 which was accompanied by its application for summary judgment.
Summary judgment principles
[26] AMP’s application is made under r 12.2(2) of the High Court Rules 2016 which provides:
The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.
[27] Relevant principles that apply to a defendant’s application for summary judgment are:1
(a)The defendant has the onus of proving on the balance of probabilities that a plaintiff cannot succeed on any of its causes of action.
(b)Usually summary judgment will arise where a defendant can offer evidence which is a complete defence to the plaintiff’s claim.
(c)Applications for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the court and cannot confidently be concluded from the affidavits.
(d)Summary judgment may also be inappropriate where ultimate determination turns on a judgment only able to be properly arrived at after a full hearing of the evidence.
(e)Although a legal point may be decided on a summary judgment application if it is sufficiently clear, novel or developing points of law may require the context provided at trial to provide the court with sufficient perspective.
(f)At the end of the day, the court must be satisfied that none of the claims can succeed and it is not enough that they are shown to have weaknesses. The assessment made by the court on an interlocutory
1 Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [61]-[64].
application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.
[28] AMP argues the Court can properly determine questions of law on summary judgment including issues of contractual interpretation.2 Mr Fletcher argues, the summary judgment procedure is not generally appropriate to resolve issues of contractual interpretation but, in any event, the Policy must be construed in the way most favourable to him. Mr Fletcher’s counsel, Mr Gunn, referred to two decisions to support that proposition but neither involved a summary judgment application.3 I do not accept there is any obligation on the Court to defer to Mr Fletcher’s interpretation of the Policy.
A summary of AMP’s position
[29] AMP contends Mr Fletcher is not a party to the Policy and cannot sue on it. However, it does not rely on this argument for the purposes of its summary judgment application. It proceeds on the basis Mr Fletcher is a party to the Policy and entitled to sue upon it as a matter of contract. This approach presents an immediate difficulty because it is not clear in what sense Mr Fletcher is to be regarded as a party to the Policy. Is he to be regarded as standing in the shoes of Lawlink and, if so, to what extent and for what purposes? The issue was not addressed in submissions.
[30] AMP argues a seemingly narrow point which it says is a complete answer to Mr Fletcher’s claim. It contends compliance with cl 15 is a condition to an ongoing entitlement to cover under the Policy. On this basis it was entitled to require Mr Fletcher to provide evidence it considers is required to assess his continued entitlement to the benefit and, as he has refused to provide the evidence, it has no obligation to continue to pay him.
[31] It is important to understand that for the purposes of this summary judgment application AMP is asserting the failure of a condition of payment under the Policy. It
2 Zurich Australian Insurance Ltd v Cognition Education Ltd [2014] NZSC 188, [2015] 1 NZLR 383.
3 Wilkens v Auckland District Court [1998] 11 PRNZ 232 (HC) and Kynaston v Clark HC Christchurch CP124/97, 7 August 1998.
does not argue Mr Fletcher is not totally disabled following consideration of the evidence before it. The distinction is important. As Tuckey J noted in Napier v UNUM Ltd:4
Now it seems to me that there is a clear distinction between what insurers may require as proof of the claim, in the sense of what evidence they can call for to support it … and their evaluation of that evidence in the sense of deciding whether or not to accept it having regard to any other information available to them.
[32] If its primary position, based on cl 15, is accepted, AMP argues all three of Mr Fletcher’s causes of action must fail as they are all founded on Mr Fletcher’s incorrect interpretation of cl 15, that AMP is not entitled to require him to provide medical records or attend medical examinations, or even get its own medical advice.
[33] An alternative argument was advanced that if the Policy had not contained cl 15, AMP was entitled to make the requests in reliance upon an insured’s obligation of good faith. I consider this is something of a red-herring. The proposition advanced is far from certain and unsuitable for resolution on this application.5 I do not need to consider it further.
A summary of Mr Fletcher’s position
[34] Mr Fletcher argues this case is unsuitable for summary judgment because there are disputed issues of fact and law that can only be determined at trial. The disputed questions of fact, he says, include such fundamental matters as the identity of the correct policy document and wording.
[35] Mr Fletcher also submits the Court cannot determine this application in the absence of independent expert evidence concerning the nature and operation of group policies of insurance.
4 Napier v UNUM Ltd [1996] 2 Lloyd’s Rep 550 (QB) at 553.
5 In Southern Response Earthquake Services Ltd v Dodds [2020] NZCA 395, [2020] 3 NZLR 383 at [193]-[194] the Court of Appeal noted “… it does not follow from the fact that a contract of insurance can be described as a contract of good faith that there is an implied term of good faith in every insurance contract, that applies across the board to all aspects of the parties’ dealings in connection with the contract. To the contrary, the authorities suggest that the obligations that one party owes the other are context-specific.”
[36] In respect to the operation of cl 15, Mr Fletcher advances several submissions. First, he submits the Policy does not confer upon AMP the ability to make its own subjective assessment of his medical information. Second, he contends the obligation to supply evidence to AMP rested with Lawlink as Proposer and not with him as a Life Insured. Third, Mr Fletcher argues AMP was required to, but did not, exercise any power it had to request evidence “reasonably, timeously and in good faith.”6 Mr Fletcher also says the only circumstances under which AMP could stop payment of his benefit were set out in cls 2 and 5 of the second schedule of the Policy.
[37] Finally, Mr Fletcher contends his unchallenged evidence of advice that AMP provided him that he had standing as a party to the Policy means his second and third causes of action, based on breach of the Fair Trading Act and negligence, cannot be rejected as untenable. On this basis AMP cannot satisfy its burden to show none of his causes of action can succeed.7
My view of the issues
The policy wording
[38] The Policy has gone through several iterations. Mr Fletcher says he has been provided with several policy wordings and he does not know which applies to his claim. He notes, also, AMP has provided only an unsigned copy of a 2009 policy wording, yet Lawlink pleads that the “Policy Wording took effect from 1 April 2004.” Mr Fletcher also refers to differences in the various policy wordings and that they are not stand alone documents and there must be further relevant documents containing policy terms.
[39] Initially, I was unattracted by these arguments. Mr Fletcher pleads in his statement of claim that the terms of the Policy were replaced from 1 October 2009 and, in that sense, his argument appears contrary to his pleading. AMP’s witness, Mr Vassiliou, produced a signed copy of the 2004 policy wording and its key provisions are identical to the unsigned 2009 policy wording. On this basis, it might
6 It appears in this submission Mr Fletcher relies upon Brown v Hannover Life Re of Australasia Ltd [2020] FCA 1391 at [121].
7 High Court Rules 2016, r 12.2(2).
be thought whether the 2004 or 2009 policy wording applies is not material. However, I consider my first impression was wrong.
[40] Given Mr Fletcher’s evidence it is puzzling AMP has not produced either a signed copy of the Policy or an explanation for why it cannot do so. At the very least Lawlink, which is supportive of its position, could have confirmed the policy wording.
[41] In support of the contention that the policy wording it relies upon applies, Mr Vassiliou exhibits to his reply affidavit a document of AXA (which was acquired by AMP) accepting Mr Fletcher’s claim in 2011 with the 2009 policy wording attached. That takes AMP’s position no further, however, being an internal document and the attached policy wording is also unsigned.
[42] On reflection, Mr Fletcher’s pleading that the terms of the Policy were replaced as from 1 October 2009 is not necessarily inconsistent with his position the policy wording is unclear. I also consider he is correct there are likely to be other policy documents. The wording provided by AMP is identified as a “proposal” and the basis for the contract between the parties includes the proposal and other documents identified in cl 3(b) of the proposal. No such documents have been produced by AMP.
[43] AMP has the burden to establish Mr Fletcher’s claims cannot succeed and it is a heavy one. It is up to it to ensure its documents are in order and, in this instance, I cannot be satisfied of that. There is a material factual dispute as to the wording of the Policy. Summary judgment is not, therefore, appropriate. That could be the beginning and end of this judgment, but there are other reasons I would refuse summary judgment.
Is there a need for expert evidence?
[44] Mr Gunn submits the case is unsuitable for summary judgment as Mr Fletcher intends to call expert evidence that will “inform the Court’s assessment” of the parties’ obligations under a group policy.
[45] AMP relies upon the evidence of Mr Vassiliou. Much of Mr Vassiliou’s evidence is factual and concerns matters of which he could be expected to have personal knowledge and, in so far as it relates to the insurance industry, expertise. However, his evidence concerning medical matters, including the nature of brain injuries, the practices of medical experts and the information medical experts consider undertaking assessments, are not within his expertise. It appears his evidence is based upon advice of medical experts.8 I agree with Mr Gunn that his evidence needs to be tested at trial.
[46] Leaving aside these criticisms of Mr Vassiliou’s evidence, there are matters upon which expert evidence may be required at trial that is not before me. For example, Mr Fletcher’s complaint to the Privacy Commissioner highlighted whether it is necessary for AMP and its experts to have access to all of Mr Fletcher’s medical records. The Commissioner did not accept advice AMP was given that a GP could not appropriately decide what information is required by a specialist assessing a head injury. It appears to me, that is the kind of matter the Court may need to determine in assessing whether AMP’s requests under cl 15 were reasonable. It is to the meaning of cl 15 that I now turn.
The meaning of cl 15
[47] The kernel of the dispute presented to me concerned the meaning of cl 15. In my view, the issues that arise in relation to cl 15 are as follows:
(a)Was AMP entitled to require Mr Fletcher to provide evidence to support his continued qualification for the benefit?
(b)What evidence could AMP require him to provide?
(c)Were AMP’s requests reasonable?
(d)What was the consequence of Mr Fletcher’s refusal to comply with AMP’s requests?
8 Evidence Act 2006, ss 23-26 and sch 4 of the High Court Rules.
Was AMP entitled to require Mr Fletcher to provide evidence?
[48] Mr Fletcher says he is not obliged to respond to requests for evidence under cl 15. While cl 15 states that it is the Proposers (Lawlink) who shall produce evidence of qualification or continued qualification for payment of any benefit under the Policy, in this instance such evidence would only be obtainable from Mr Fletcher or with his consent.
[49] Lawlink was made aware of AMP’s requirements and agreed with them, but is unable to comply because Mr Fletcher will not cooperate. It considers any breach of the Policy by Lawlink in supplying such evidence was caused by Mr Fletcher’s refusal to cooperate with AMP’s reasonable requests.
[50] If, as AMP says, compliance with cl 15 is a condition of continued payment of the benefit, it does not matter whether the obligation to provide evidence rests with Lawlink or Mr Fletcher in the circumstances of this case. Both have been asked to provide the evidence. Mr Fletcher has not done so and Lawlink is unable to do so without Mr Fletcher’s cooperation and he has refused to provide it.
What evidence could AMP require Mr Fletcher to provide?
[51]Relevantly for present purposes, cl 15 requires the Proposers to:
… 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.
[52] AMP argues that case law confirms its entitlement to the evidence it seeks from Mr Fletcher and that insurance of the kind in question would be unworkable if its requests could be ignored or blocked by a life insured. It says it has not located any case in which a life insured has argued that they are not obliged to provide medical records to the insurer, allow their personal information to be disclosed to independent medical experts or attend any medical examination requested by the insurer. That is, AMP contends, because the requirement to provide such information to sustain a claim is fundamental to the law of insurance.
[53] Mr Fletcher has advanced some arguments in relation to the meaning of cl 15 which I do not accept. He has said, for instance, that the Policy does not allow AMP to undertake its own subjective assessment of his medical information. That cannot be correct.
[54] Riley v The National Mutual Life Association of Australasia Ltd concerned a claim under a life insurance scheme which provided a total and permanent disablement benefit if, in the opinion of the insurer “after consideration of the medical evidence”, the insured was incapacitated and unable to work.9 The Court noted whilst the insurer was not required to consider any evidence other than that which the insured placed before it, it was “entitled, of course, to obtain its own medical opinions and to require further information if such requisition appeared to it to be reasonable.”10
[55] Mr Fletcher also says while AMP can require “evidence” it cannot require “assessments” and there is nothing in the Policy that requires a Life Insured to submit to medical assessments. In my view, in the context of cl 15 the word “evidence” means facts or information relevant to the Total Disablement criteria in the Policy which might include medical assessments.11
[56] However, while acknowledging the strength of AMP’s position, it cannot be the case that its right to request evidence is unlimited.12 It could not be, for instance, that it can demand information which is unrelated to the claim made against it or demand privileged information. In Napier v UNUM Ltd, Tuckey J stated the English cases establish that an insurer’s requirements for vouching (that is requiring proof) of a claim must be reasonable.13
[57] Clause 15 imposes a reasonableness requirement upon AMP’s power to require evidence. Under it, where a Life Insured’s continued qualification to receive a benefit is in issue, AMP can require evidence be produced if:
9 Riley v The National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Insurance Cases 60-684 at 74,061
10 At 74,064. See also Van der Noll v Sovereign Assurance Co Ltd [2013] NZHC 3051 at [94] and
Brown v Hanover Life Re of Australasia Ltd, above n 6 at [121].
11 Sutton on Insurance Law (4th ed. Thomson Reuters, Sydney) vol 2 at [21.120]
12 See for instance Moore v Woolsey (1854) 4 E & B 243, (1854) 119 ER 93.
13 Napier v UNUM Ltd, above n 4, at 553.
(a)“the circumstances require”;
(b)the evidence concerns the Life Insured’s qualification for payment of a benefit under the Policy; and
(c)it is evidence the Insurer “may reasonably require”.
[58] This approach is largely in accord with the submissions made by Mr Gunn on behalf of Mr Fletcher. The focus of his argument was that AMP’s requests of Mr Fletcher were not reasonable in several respects.
Were AMP’s requests reasonable?
[59] Mr Gunn submits it is not enough that AMP considers its requests for information are reasonable or consistent with industry practice. He argues the requests must be objectively reasonable and they must be made in good faith. He considers in determining reasonableness regard must be had not only to the terms of the Policy but to the nature of Mr Fletcher’s condition, the evidence that Mr Fletcher voluntarily provided to AMP, AMP’s reasons for not accepting that evidence and the manner in which AMP has handled the claim since 2011.
[60] Mr Gunn submits it is relevant that Mr Fletcher is suffering from a brain injury and is vulnerable and AMP chose to deal with him directly rather than through Lawlink, thereby depriving him of protection the Policy anticipated.14
[61] It is argued the evidence of Mr Vassiliou as to industry practice is contradicted by the history of dealings between AMP and Mr Fletcher. Mr Fletcher says he had not provided any information to AMP when in 2011 it approved his claim and had not been required to be medically assessed at all since 2012. AMP has also approved annual payments without any medical or financial information. In light of that history, Mr Fletcher challenges the basis upon which AMP now makes the requests for evidence. He notes, for instance, its reliance in its letter to him of 19 June 2020 upon a report of Dr Ruttenberg dated 15 September 2011 that Mr Fletcher might commence
14 Brown v Hanover Life Re of Australasia Ltd, above n 6, at [121]
a gradual return to work after 9-12 weeks but that it makes no reference to a later report of Dr Rattenberg that he was unfit for work.
[62] As noted, Mr Fletcher does not accept AMP can require all of his GP medical records, which is a matter he appears to have raised in his telephone call with Mr Vassiliou on 19 May 2020 and was considered by the Privacy Commissioner, which provided support for Mr Fletcher’s position.
[63] Mr Fletcher says it is not reasonable to require him to attend medical assessments when AMP has not provided evidence that it has considered the information he has provided, including the letter from Dr Newburn, or provided reasons why that information is not satisfactory to it. He says there is no competing medical evidence to the report of Dr Newburn.
[64] Mr Fletcher also says in May 2019 he received consent from AMP to alter his progress claim forms to remove parts of the form that provide AMP with blanket authority to use his medical and other private information. It is not clear who provided this consent but there is no direct denial that this occurred in Mr Vassiliou’s reply affidavit.
[65] Mr Fletcher challenges the independence of the medical experts chosen by AMP to conduct assessments of his condition.
[66] Much of what Mr Fletcher says is disputed by AMP. It relies upon the evidence of Mr Vassiliou and the case law. It refers to the lengths it has gone to, to accommodate Mr Fletcher’s objections to its requests. It also argues, the real reason Mr Fletcher does not wish to provide evidence is it may not support his entitlement. AMP asks me to take a robust and realistic approach to the evidence.
[67] I do not consider Mr Fletcher’s stance that AMP’s requests are not reasonable is a strong one but I do not find it is unarguable. Consistent with the principles that apply to defendants’ summary judgment applications it is not enough that Mr Fletcher’s case has weaknesses and the Court is not to arrive at a conclusion based on a fine balance of the evidence. There is some factual basis for each of the matters Mr
Fletcher relies upon in support of his argument that AMP’s requests are not reasonable. It would be wrong to summarily dismiss Mr Fletcher’s claim, particularly so given the heavy reliance AMP places on the evidence of Mr Vassiliou which, for reasons I have given, is open to challenge.
What was the consequence of Mr Fletcher’s refusal to comply with the requests?
[68] Insurance policies often contain provisions requiring the insured to cooperate with the insurer or provide information on the request of the insurer or even, in the case of a life or accident policy, to submit to medical examination. Whether such a term operates as a condition and, if so, the consequence that flows from a failure of the condition, are questions of construction of the policy and are contextual.15
[69]Sutton on Insurance Law notes as follows:16
It is necessary, in order to characterise and categorise a condition, to ask a series of questions: is the clause capable of being a condition and, if so, a condition precedent to liability; is it expressed to be a condition precedent to liability; is there anything in the context in which the clause is placed or in the content of the other contractual obligations which would displace a presumption that the clause is a condition precedent to liability; is the commercial reality of the contract disturbed to any significant extent by treating it as such; and are there any special circumstances surrounding the issue of the policy which will assist in the interpretation of the document if ambiguity exists?
[70] AMP relies on Napier v UNUM Ltd.17 That case is distinguishable from the present as, there, the insurer was not arguing it was entitled to stop payment because the insured had failed to comply with a condition to provide proof as it had required. I understand AMP relies on Napier because Tuckey J noted that one expects to find in a policy of the kind in question as a condition precedent to the insurer’s liability to pay, a requirement that the insurer should be provided with all information as they may require. However, the wording of the condition in Napier was very different from cl 15. It made clear that the admission or continuation of a claim was subject to the insured providing such information and medical evidence as UNUM required and that
15 See for instance the differences of opinion in London Guarantie Company v Fearnley (1880) 5 App Cas 911(HL).
16 Sutton on Insurance Law, above n 11, vol 1 at [3.1110] (footnote omitted).
17 Napier v UNUM Ltd, above n 4.
UNUM could call for an examination of the insured by a medical officer appointed by it.
[71] I am not satisfied that it is necessarily the case that a failure by the Proposer (or in this instance Mr Fletcher) to comply with a request for evidence under cl 15 entitles AMP to discontinue payment of a benefit. Clause 15 contains no words to that effect. Given the consequences of such an interpretation upon a Life Insured it should not be lightly inferred that is intended. The heading of cl 15, which assumes a benefit has become payable, and the fact that requests under cl 15 are subject to a reasonableness requirement are factors that are not supportive of AMP’s position. There is also an argument that it is not necessary to treat cl 15 as a condition of payment as when faced with a refusal to comply with such a request AMP might reject a claim based on the information before it (the duty being on an insured to provide satisfactory evidence of the claim) and in court proceedings seek discovery or an order the Life Insured undergo medical examination.18
The further causes of action
[72] Because of the conclusion I have reached it is not necessary for me to deal with AMP’s argument that Mr Fletcher’s second and third causes of action cannot succeed. However, I consider this is a strong submission. I do not see what those causes of action add to Mr Fletcher’s claim. Had I considered Mr Fletcher’s first cause of action was not arguable I would also have found his second and third causes of action could not succeed also.
Conclusion
[73] AMP has failed to satisfy me all of Mr Fletcher’s causes of action cannot succeed. I consider, based on what is before me, that Mr Fletcher’s first cause of action cannot be dismissed as unarguable and that it raises factual and legal disputes which I cannot appropriately resolve on this summary judgment application. Accordingly, the summary judgment application will be dismissed.
18 Senior Courts Act 2016, s 44.
Result
[74]AMP’s application for summary judgment is dismissed.
[75] I reserve costs. If any party seeks costs (which I am not encouraging) memoranda of not more than five pages may be filed prior to 1 February 2022 with 14 days for replies.
O G Paulsen Associate Judge
Solicitors:
Morgan Coakle, Auckland
TG Legal Services Ltd, Warkworth Bell Gully, Auckland
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