Nino v MLC Limited [2009] NSWSC 400

New South Wales Supreme Court

CITATION : Nino v MLC Limited [2009] NSWSC 400

HEARING DATE(S) : 24/04/09

JUDGMENT DATE : 24 April 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 24 April 2009

DECISION : Refer to paras 31, 32, 33 and 35 of judgment.

CATCHWORDS : INTEREST – claim under s 57 Insurance Contracts Act 1984 (Cth) - date from which it was unreasonable for insurer to have withheld payment on claim was three months after claim was made – plaintiff entitled to interest from this date to the date the benefit was paid

LEGISLATION CITED : Insurance Contracts Act 1984 (Cth)

CATEGORY : Principal judgment

Max Hams v CGU Insurance Ltd [2002] NSWSC 843 CASES CITED : Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 857; 213 FLR 174 Bankstown Football Club Limited v CIC Insurance Ltd (Supreme Court of New South Wales, Cole J, 17 December 1993, unreported)

Judith Nino PARTIES : v MLC Limited

FILE NUMBER(S) : SC 1271/09

COUNSEL : Plaintiff: M J Bleasel Defendant: G Newton

SOLICITORS : Plaintiff: Firths - The Compensation Lawyers Defendant: Turks Legal

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE'S LIST

WHITE J

Friday, 24 April 2009

1271/09 Judith Nino v MLC Limited JUDGMENT 1 HIS HONOUR: On 23 February 2003 the plaintiff made a claim on a policy of insurance issued by the defendant for a benefit for what she claimed was a total and permanent disability within the meaning of the policy. That claim was initially rejected on 15 May 2003. On 15 August 2003 the solicitor for the plaintiff's workers' compensation insurer provided the defendant with certain medical reports evidently prepared in connection with the workers' compensation claim. These were considered by the defendant on 21 August 2003. It notified the plaintiff that to assist it with a further assessment of her claim it would need names and addresses of treating specialists she had seen in the previous eighteen months and further medical information from her treating medical practitioner, Dr Finkelstein. The plaintiff provided the requested information. 2 The plaintiff was referred by the defendant to specialists for further assessment. On 23 February 2004 a Dr Hall provided an assessment of the plaintiff's condition and on 26 February 2004 Dr Sachdev also provided an assessment. In significant respects they conflict. 3 On 19 March 2004 the defendant advised the plaintiff that it stood by its decision made in May 2003 that she did not satisfy the definition of total and permanent disablement in the policy. A further report from an external consultant obtained by the defendant was obtained in May 2004, and on 20 May 2004 the defendant again rejected the claim. 4 On 27 March 2006, the plaintiff having retained a firm of solicitors, through them asked for reconsideration of her claim. A further report from a Dr Patrick (who had seen the plaintiff in 2001 and 2003 in connection with the workers' compensation proceedings) was supplied, namely, a report from that doctor of 12 September 2005. 5 On 25 May 2006 the defendant again rejected the claim. On 1 August 2007 the plaintiff's solicitor sought a further reconsideration of the claim based upon further medical reports. That request was considered but the claim was again rejected on 9 August 2007. 6 On 22 January 2008 the plaintiff's solicitors again sought a review of the decision from the defendant and in support of this contention referred to what were claimed to be decisions made by other insurers on comparable policies to accept the claim. 7 On 25 July 2008 the defendant accepted the claim in the following terms. " We refer to the above claim. Please find enclosed a cheque for $121900.00 representing payment and discharge of the above-mentioned claim. "