Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Saeedi v Cover-More Insurance Services Pty Ltd [2021] NSWCATAP 168 Hearing dates: 31 May 2021 Date of orders: 09 June 2021 Decision date: 09 June 2021 Jurisdiction: Appeal Panel Before: Cowdroy AO QC ADCJ, Principal Member P Molony, Senior Member Decision: The Appeal Panel orders that the appeal be dismissed. Catchwords: APPEALS — insurance — claim by policyholder under travel insurance policy — whether policyholder complied with conditions of policy to receive benefit for extra cost of accommodation and lump sum benefit for permanent disability – no evidence of additional costs incurred — no evidence of permanent disability Legislation Cited: Nil Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Habib Saeedi (Appellant) Cover-More Insurance Services Pty Ltd (Respondent) Representation: Solicitors: Appellant (self-represented) Respondent (self-represented) File Number(s): 2020/00371138 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not reported Date of Decision: 06 October 2020 Before: S Hennings, General Member File Number(s): GEN 20/17245 REASONS FOR DECISION Introduction 1. By Notice of Appeal filed on 26 October 2020, the appellant seeks to appeal the decision of the Tribunal made on 6 October 2020, which dismissed his claim for benefits under a travel insurance policy issued by the respondent. 2. The Notice of Appeal does not claim that there is any appellable error in the decision of the Tribunal. However, during the course of the hearing of the appeal, which took place by telephone, the appellant identified his claims. The appellant claimed that there was a "cover up" and bias in relation to the denial of his entitlement under the insurance policy to compensation for certain accommodation costs and an injury sustained while visiting the United Kingdom. When clarification was sought as to the claim of bias the appellant stated: "Biased because it is supporting the business people not the consumers" Appeal process 1. Following the filing of the appeal, directions were made on 19 November 2020 as follows: 1. The Registry is directed to forward the emails from the Appellant seeking the adjournment to the Respondent. 2. The call over on 20 November 2020 is vacated. 3. The Appellant is directed to file and serve a request to list the Appeal for a call over when he is well. 4. Liberty to both parties to relist on 7 days notice. 1. On 21 January 2021 the following order was made by the Appeal Panel constituted by S Westgarth, Deputy President: 1. The Appellant's request for an adjournment is refused. Reasons: The call over on 3 February 2021 is not the hearing of the appeal. Rather directions will be given to prepare the appeal and a later hearing date will be given. The Appellant can ask someone else to represent him. In addition there is no medical evidence in support of the adjournment. 1. On 3 February 2021 directions were made which required, inter alia, the appellant to lodge and serve any evidence and submissions upon which he intended to rely by 17 March 2021; the respondent to lodge and serve any evidence and submissions upon which it intended to rely by 31 March 2021; and the appellant to lodge and serve any written submissions in reply by 7 April 2021. The appeal was listed for hearing on 15 April 2021 at 10:15am for a half day by telephone. 2. On 31 March 2021 the following orders/directions were made: 1. The hearing on 15 April 2021 is vacated and the parties are excused. 2. The appeal is listed for hearing on 31 May 2021 at 10:15am for a half day, by telephone. 1. When the hearing of the matter first commenced, the Appeal Panel made contact with the appellant, who indicated he had been unwell and was undergoing a course of chemotherapy which made him excessively tired. The appellant had referred to the fact that the adjournment had been refused on a previous occasion. The appellant did not specifically request that the hearing be further adjourned. Accordingly, the Appeal Panel proceeded to hear the appeal. 2. Although directed to do so by the orders/directions made on 3 February 2021, the appellant had not filed any written submissions or provided any evidence. The respondent had provided documentation including a copy of the relevant insurance policy. Facts 1. The appellant, as the insured, held a policy of travel insurance issued on 2 July 2018 and arranged by the respondent, being policy number 718000532791 entitled "Flight Centre Your Cover Plus". The period of cover was stated to be from 1 October 2018 to 1 December 2018. 2. The appellant booked accommodation in London at Severn House between 2 October 2018 and 1 November 2018. In early October 2018 he sustained an injury to his right hip when he fell from a low bed at the accommodation, due to insufficient support. The appellant informed the insurer on 1 November 2018. He remained at the accommodation for the duration of his planned stay in London and then flew to Thailand on 2 November 2018. 3. The appellant made a claim under his policy of insurance in respect of two categories. Firstly, the appellant claimed a refund of his accommodation at Severn House for which he had paid £2,200. Secondly, the appellant claimed the amount of $25,000, being a disability lump sum which he alleged was payable under the policy of insurance. Accommodation claim 1. To succeed in his claim for an accommodation refund, the appellant was required to satisfy the requirement of "additional expenses" referred to in the section entitled "Section 2: Additional Expenses" which included: "1. If You Become Sick Cover is subject to the written advice of the treating qualified medical practitioner and acceptance by our emergency assistance team. If you suffer a disabling injury, sickness or disease, we will pay the reasonable additional accommodation (room rate only) expenses and additional transport expenses, at the same fair class and accommodation standard as originally booked, incurred by: (a) You … The benefit ceases when you are able to continue your journey, travel home or on the completion of the Period of Insurance whichever is the earlier." 1. The respondent refused such claim on the ground that no additional expenses were incurred over the payment already made by the insured for the accommodation. The Tribunal accepted the respondent's decision, finding that the insurance policy only covered additional expenses and/or cancellation fees if in fact the appellant did change accommodation. The appellant did not do so and accordingly that claim could not succeed. Lump sum payment for injury 1. The appellant made a claim for $25,000 under section 15 of the policy, which provides, relevantly: "Section 15: Disability If during the period of insurance you suffer an injury… resulting in your permanent total loss of use of one or more limbs within one year of the date of the accident, we will pay you the amount shown in the plan purchased… The maximum benefit for this section is: International plus $25,000 Inbound $25,000" 1. The appellant's general practitioner, Dr Pham, in his report dated 7 November 2019, stated: "In my opinion, the stay in the London [sic] with a low bed with insufficient support and subsequent slipping and falling injuring his right hip, was the sole cause to Mr Saeedi having damaged his right hip… The damage to his hip has resulted in his the [sic] loss of him using his right leg in that his mobility has been significantly impaired since the accident. He has not been able to mobilise well for the 12 consecutive months since the stay in London and it is unlikely to improve with the current treatment provided." 1. A report of Associate Professor James Sullivan dated 21 November 2019 states: "[I]t is quite likely that Mr Saeedi's ongoing symptoms are a direct result from his fall". 1. The respondent has obtained a medical opinion from Dr Stephen Rashford dated 3 March 2020. His diagnosis is as follows: "The working diagnosis is trochanteric bursitis. This condition is the inflammation of a small fluid filled sac that normally provides the movement of soft tissues (tendons/muscles) against other soft tissue or bone. The hip has a large range of movement, with the bursae contributing to this. When inflamed, the bursa enlarges and the fluid increases. This results in pain upon movement etc. Most treatment is simple (analgesic, physiotherapy etc), but injection of steroid medication and more rarely surgery may be required. 1. Dr Rashford referred to the expert opinions obtained for the appellant and stated: "Both of these reports supports that Mr Saeedi has ongoing symptomatology. It is likely his gait is somewhat affected and he has some level of functional impairment but neither report supports a permanent loss of use of one limb. Mr Saeedi is still able [to] move and use his right leg, in fact, Dr Sullivan specifically notes that Mr Saeedi demonstrates a good range of movement of the right hip. It would be my opinion that Mr Saeedi does not suffer permanent total loss of the limb." 1. The respondent denied liability under section 15 because there is no evidence that the appellant has suffered any permanent total loss of one or more limbs. 2. The Tribunal agreed and dismissed the application brought by the appellant. Observations 1. The Appeal Panel observes that it was necessary for the appellant to demonstrate that each of his claims, namely additional expenses and permanent loss of a limb, were established. Unless the appellant was able to satisfy the requirements of the policy wording, it was not possible for him to succeed in his action against the respondent. 2. Factually, there is no evidence of any additional expenses having been incurred by the appellant following his injury at Severn House. Accordingly, his claim for additional expenses could not succeed. There is no error demonstrated in the Tribunal's finding. 3. In respect of his medical condition, to succeed under section 15 of the policy, it was necessary for the appellant to demonstrate that he had suffered a permanent total loss of one or more of his limbs. The medical evidence provided by his own practitioners and by the respondent does not suggest that the appellant has suffered any total permanent loss. In these circumstances the appellant cannot succeed in his claim against the insurer for his injury. 4. It follows that the decision under review contains no error. There is no basis for the assertion that any bias or favouritism exists as alleged by the appellant. The appellant can only succeed if he satisfies the terms and conditions of the policy. The appellant has failed to do so. It follows that the appeal should be dismissed. Orders 1. The Appeal Panel orders that the appeal be dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2021