Australian Mutual Provident Society v Goulden [1986] HCA 24

High Court of Australia Gibbs C.J. Mason, Brennan, Deane and Dawson JJ. Australian Mutual Provident Society v Goulden [1986] HCA 24

ORDER Demurrer overruled with costs. Judgment for the plaintiff in the action with costs to be paid by the first defendant.

Cur. adv. vult.

The Court delivered the following written judgment:—

May 22 Gibbs C.J.,Mason, Brennan, Deane and Dawson JJ.

The plaintiff in this action is the Australian Mutual Provident Society ("the A.M.P."). It is a New South Wales corporation which carries on throughout Australia the business of life insurance. It is registered to carry on such business under the Life Insurance Act 1945 Cth and has, at material times, maintained a statutory fund in accordance with the requirements of s. 37 of that Act.

The first defendant ("the insured") has been totally blind since birth. On or about 16 September 1980, the A.M.P. issued, at the request of the insured, a policy of insurance whereby, in consideration of an annual premium, the A.M.P. agreed to pay a stipulated amount on the anniversary of the policy immediately preceding his sixty-first birthday or upon his earlier death. This policy, being "a policy insuring payment of money on death (not being death by accident or specified sickness only)", came within the definition of life policy in s. 4(1) of the Act. On 22 September 1981, the insured requested the A.M.P. to amend the policy by adding to it, in consideration of the payment of an additional annual premium, a benefit known as a "waiver of premium benefit". The effect of that additional "benefit" would have been that, "upon total disablement" of the insured, the A.M.P. would, subject to the conditions set out in the policy, "waive the payment of each premium falling due during the uninterrupted continuance of the disablement". For the purposes of any such additional benefit, "total disablement" is defined as meaning "disablement resulting from an illness or accident or injury to the [insured] commencing or occurring after the date of effecting [the] policy but before the policy anniversary preceding the attainment of age 60, as a result of which the [insured] is unable, for an uninterrupted period of at least 6 months, to engage in any occupation or employment or business for remuneration or profit".