Dumitrov v SC Johnson & Son Superannuation Pty Ltd & Anor [2006] NSWSC 1372

New South Wales Supreme Court

CITATION : Dumitrov v SC Johnson & Son Superannuation Pty Ltd & Anor [2006] NSWSC 1372

HEARING DATE(S) : 29/11/06, 30/11/06, 01/12/06

JUDGMENT DATE : 12 December 2006

JUDGMENT OF : Gzell J

DECISION : Definition of total and permanent disablement not unusual for the purposes of the Insurance Contracts Act 1984 (Cth), s 37 and reliance upon it not to fail to act with the utmost good faith under s 14. By confining its opinion on a review of reports on file, the insurer addressed the wrong question and the rejection of opinions on file favourable to the plaintiff without further inquiry was to fail to act reasonably, in good faith and fairly to the plaintiff. Opinion of insurer set aside and Court determination that plaintiff totally and permanently disabled substituted.

CATCHWORDS : INSURANCE -Accident and Sickness Insurance - Superannuation trustee holding insurance policy covering total and permanent disablement of scheme members including plaintiff - Liability of insurer dependent upon its opinion that plaintiff totally and permanently disabled as unable ever to engage in any occupation or work that the plaintiff was reasonably capable of performing by reason of education, training or experience - Reassessment of reports on file without further inquiry - Whether insurer addressed the wrong question - Rejection of opinions of doctors favourable to plaintiff including that of doctor to whom plaintiff referred by insurer - Whether opinion reasonable, in good faith and fair to the plaintiff - Whether definition of total and permanent disablement unusual in terms of the Insurance Contracts Act 1984 (Cth), s 37 - Whether the insurer's reliance on the definition was to fail to act with the utmost good faith in terms of the Insurance Contracts Act 1984 (Cth), s 14