Supreme Court New South Wales Medium Neutral Citation: Preston v AIA Australia Limited [2013] NSWSC 282 Hearing dates: 26/09/2012, 19/11/2012 Decision date: 03 April 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Proceedings dismissed Catchwords: INSURANCE - Accident and sickness insurance - The contract - construction of policy terms - plaintiff had a pre-existing condition - whether plaintiff was "Totally Disabled" due to "Accidental Injury" as defined by the policy - whether plaintiff was entitled to waiver of premium benefit under the policy. Legislation Cited: Competition and Consumer Act 2010 (Cth) Trade Practices Act 1974 (Cth) Insurance Contracts Act 1984 (Cth) Cases Cited: Giles v National Mutual Life Association of Australasia Limited (1986) 4 ANZ Ins Cas 60-751 American Home Assurance v Saunders (1987) 11 NSWLR 363 at 369-372 Category: Principal judgment Parties: S Preston (Plaintiff) AIA Australia (Defendant) Representation: S Preston (in person) File Number(s): 2011 / 00027942 Judgment INTRODUCTION 1In these proceedings the plaintiff (a self-represented litigant) claims, in various guises, a money judgment against the defendant arising from denial by the defendant of any liability for payment to the plaintiff of "Disability Income" benefits under a policy of insurance it issued to him on or about 23 April 2008, the date of commencement of the cover provided by the policy. 2By his statement of claim and extensive written and oral submissions, the plaintiff makes extravagant claims for relief which, at one end of a spectrum, challenge the formation of the policy and, at the other, assert that the defendant is liable for loss of bargain damages for repudiation of its obligations under the policy. However, the case he pleads, as distinct from the claims for relief he makes, focuses attention on an allegation that the defendant is contractually bound to pay him a "Total Disablement Benefit" under the policy. 3There is no evidence before the Court that could, objectively, justify a finding that the contract between the parties was defective in its formation or the subject of repudiation in its performance. Upon an objective assessment, the plaintiff's case is predicated on a cause of action in debt, or for damages for breach of contract, for non-payment by the defendant of the Total Disablement Benefit to which the plaintiff claims an entitlement. 4Subject to the plaintiff's claim of entitlement to a "Waiver of Premium Benefit" under the policy, the policy must be taken to have lapsed no later than 29 April 2010 or thereabouts following the plaintiff's non-payment of premiums after December 2009. By a letter dated 29 April 2010 the defendant advised the plaintiff that the policy had lapsed. It invited him to apply for its reinstatement. That invitation was not taken up. 5The questions whether the plaintiff has an entitlement to payment of a Total Disablement Benefit and whether he has an entitlement to a Waiver of Premium Benefit both turn on whether he can, correctly, be characterised as having become "totally disabled" within the meaning of the policy. 6Central to the plaintiff's claim is a contention that he became "totally disabled", within the meaning of the policy, following an injury to his left ankle on 6 May 2009. 7The policy provided for the payment of Disability Income benefits for a period of up to five years in the event that the plaintiff became "Totally Disabled" as defined by the policy: Policy Schedule; Policy Terms and Conditions (Disability Income Plan/Indemnity Basis), clause 6.1.1. 8"Total disablement" was defined by the policy in terms that required that the plaintiff, as the "Life Insured", be unable to perform one or more duties of his occupation (as a carpenter) due to "Accidental Injury". 9The policy defined "Accidental Injury" in the following terms: "'ACCIDENTAL INJURY' means a physical injury which is caused solely and directly by violent, accidental, external and visible means, which occurs while the benefit is in force and which results solely and directly and independently of a pre-existing condition or any other cause in total disablement. Sickness directly resulting from medical or surgical treatment rendered necessary by the physical injury will not constitute an 'Accidental Injury" [emphasis added]." 10"Injury" was defined by the policy in the following terms: "'INJURY' means a physical injury which occurs whilst the Policy is in force and which results solely and directly and independently of a pre-existing condition or any other cause, in Total or Partial Disablement within one year of the date of its occurrence. Sickness directly resulting from medical or surgical treatment rendered necessary by the physical injury will not constitute an 'Injury' [emphasis added]." 11The issue of central significance in these proceedings is whether the physical injury suffered by the plaintiff on 6 May 2009 can be said to have resulted in total disablement "solely and directly and independently of a pre-existing condition or any other cause" within the meaning of "Accidental Injury" as defined. 12The medical evidence demonstrates that there were, in fact, two causes of the plaintiff's admitted disablement. That fact is fatal to the plaintiff's case because the first of the two causes (an injury suffered in 1996) occurred well before the date of commencement of the policy upon, or in respect of, which the plaintiff sues in these proceedings. 13On 6 May 2009 he sprained his ankle; that was one cause. That injury aggravated an earlier (1996) injury - the second cause - arising from a fracture of the same ankle, which had been fixed with metal screws, compromising its strength and leaving the ankle with a degenerative arthritic condition. In 1996 he fractured both his ankles in the one incident. Critically, that incident left his left ankle vulnerable to further injury. 14A clear diagnosis of the plaintiff's medical condition after 6 May 2009 took time to emerge, but emerge it did. 15An initial diagnosis, in support of the plaintiff's claim for workers' compensation entitlements, was that he had simply sprained his ankle: Workcover NSW Medical Certificate dated 18 May 2009. A short time later, again in the context of a workers' compensation claim, he was diagnosed as suffering from gout as a secondary condition: Medical Certificates respectively dated 20 May 2009, 15 June 2009 and 26 June 2009. 16However, evidence, prepared with the benefit of an MRI scan, establishes that the plaintiff had suffered a chronic tear of the deltoid ligament and an osteochondral lesion of the superior lateral talar dome as a consequence of the 1996 injury. That is evident in a radiologist's report dated 8 July 2009 prepared after the scan; an opinion expressed by Dr Lose, under the heading "Causation" on pages 2-3 of his report dated 9 July 2009; consultation notes prepared by Dr Heks, the plaintiff's general practitioner, on 13 July 2009; and the opinion of Dr Mastroianni, a consultant occupational physician, on page 4 of his report dated 21 July 2009 and on page 5 of his report dated 30 December 2009. 17That evidence establishes that, when the plaintiff sprained his ankle on 6 May 2009, he aggravated the 1996 injury to that ankle, sparking a degenerative process that resulted in his total disablement otherwise than from an "Accidental Injury" within the meaning of the policy. 18This conclusion is not inconsistent with a medical report (of Dr Lunz) recording a diagnosis on 6 August 2009 in the following terms: "[Question]: What is the current diagnosis of [the plaintiff's] current presentation? Is [the plaintiff's] current presentation more related to the incident at work on the 6th of May 2009 or his previous left foot/ankle injury of 1996/1997? [Answer]: [The plaintiff's] current diagnosis is of a sprained left ankle with a large ankle joint effusion and bony bruising of the medial talus, deltoid ligament and a sprain of the lateral ligament complex. [The plaintiff's] current presentation is more related to the incident at work on the 6th of May 2009 than to his previous ankle/foot injury in 1996/1997." 19Neither the question nor the opinion expressed in answer to it confronted the central issue for determination in these proceedings by reference to the definition of "Accidental Injury" vis á vis the injury suffered on 6 May 2009. That is evident in use of the expressions "current diagnosis", "current presentation" and "more related". 20In any event, Dr Lunz's anticipation that the plaintiff might be able to return to normal duties within two months proved over-optimistic. 21Nor is it inconsistent with a finding that the plaintiff's injury of 6 May 2009 was but one of two causes of his disablement that, during his convalescence, favouring his left ankle by placing more weight on his right ankle, he experienced pain in his right ankle, buttock and lower back: Medical reports of Dr Lunz dated 21 August 2009 and 1 October 2009; Dr Heks' Workcover Certificate dated 24 August 2009. 22Nor is a finding that the injury of 6 May 2009 was one of two causes of disablement invalidated by the fact that the deterioration of the plaintiff's left ankle hastened as a result of an injury, during physiotherapy, when he caught his ankle in a pilates machine: Medical report of Dr Heks dated 21 September 2009. 23The question remains whether the injury suffered by the plaintiff on 6 May 2009 can be said to have resulted in total disablement "solely and directly and independently of a pre-existing condition or any other cause" within the policy's definition of "Accidental Injury". 24On the medical evidence, the plaintiff's 1996 injury was a major contributing factor in the deterioration of his left ankle at the time of, and following, the injury he suffered on 6 May 2009, resulting in his inability to perform the duties of his occupation as a carpenter. The 1996 injury does not come within the introductory words of the policy's definition of "Accidental Injury", which require a "physical injury... which occurs while the benefit is in force". 25In focussing attention on the second element of the definition of "Accidental Injury" in its application to the injury suffered by the plaintiff on 6 May 2009, the defendant contends that the facts of the case are analogous to those found in Giles v National Mutual Life Association of Australasia Limited (1986) 4 ANZ Ins Cas 60-751 in which Pidgeon J, sitting in the Supreme Court of Western Australia, found (at page 74,532) that a chiropractor with a degenerative spine condition, who injured his back while treating a patient, could not be found to have suffered a bodily injury which was "caused solely and directly by... accidental means... and directly and independently of any other cause... resulting in total and permanent disablement". 26The defendant also refers to the dissenting judgment of Kirby P in American Home Assurance v Saunders (1987) 11 NSWLR 363 at 369-372 for an exposition of the meaning of expressions such as "solely and directly" and "solely and independently of any other cause" in the context of an insurance policy which provides cover in respect of bodily injury. It is sufficient, for the present, to quote the following passage from his Honour's judgment (at 370B-D): "The use of the adverbs 'solely and directly' connotes a degree of temporal proximity if only because the passage of time will inevitably introduce the possibility of other causes (and thereby run the risk of disqualification because of the requirement involved in the word 'solely') or indirect processes (which, if proved, will disqualify the bodily injury because it is not caused 'directly'). Also in favour of the insurer's argument is the purpose and nature of the policy.... It is important in a task such as this not to get lost in textual and verbal analysis so that the words acquire a meaning, in isolation, which the plain purpose of the whole document does not justify...." 27This passage reminds us that, although assistance might be drawn from a consideration of similar cases, ultimately each case must depend on its own facts. Each contract of insurance must be construed according to its own terms and having regard to its own factual context and purpose. The terms of each contract, properly construed, must be applied to the particular facts of the case at hand. 28In the present case, as appears from use of the expression "Accidental Injury" in the definition of "Total Disablement" and in the language of the definition of "Accidental Injury" itself, the policy was intended to protect the plaintiff against the consequences of accident only; and, moreover, an accident which occurred during the currency of the policy. It was not intended to provide cover against the consequences of a pre-existing condition. 29It matters not if (as the plaintiff contends, and I find) the defendant had knowledge, or the means of acquiring knowledge, that he had a pre-existing condition before the policy was issued. The policy did not, in terms, respond to an event constituting an aggravation of a pre-existing condition. It excluded from cover any injury with a causal connection to an injury suffered before its commencement. 30The disablement of the plaintiff which underlies his claim for relief in these proceedings falls within this category. The injury suffered by him on 6 May 2009 was causally connected (and substantially so) with the injury he suffered in 1996. Accordingly, it was not an "Accidental Injury" within the meaning of the policy. 31This finding is, of itself, sufficient to warrant a dismissal of the proceedings. 32However, against the possibility of an appeal, I should deal briefly with the procedural history of the proceedings and some issues of secondary importance that the plaintiff has sought to agitate. 33These proceedings were commenced by a statement of claim filed on 28 January 2011, to which the defendant filed a defence on 4 August 2011. 34In anticipation of the hearing before me on 26 September 2012, the parties filed and served written submissions. The defendant's came first, dated 21 September 2012. The plaintiff's followed, dated 24 September 2012. 35The hearing was conducted on 26 September and 19 November 2012. Between those hearing dates the parties had, and the plaintiff took, an opportunity to file and serve supplementary written submissions. 36At the conclusion of the second hearing day, the plaintiff was allowed a further opportunity to provide written submissions in support of his case. He took that opportunity by filing and serving lengthy written submissions (comprising 413 paragraphs on 162 pages) dated 3 December 2012. The defendant responded by submissions (comprising 13 paragraphs on four pages) dated 4 December 2012. 37The plaintiff's statement of claim casts a wide net in terms of relief claimed. It claims "expectation damages", "damages for unconscionable conduct", "damages for misleading and deceptive conduct under the Competition and Consumer Act 2010 (Cth) or its predecessor the Trade Practices Act 1974 (Cth), "an account of profits" and "a declaration that insurance companies must modify their current practices and operate in an open, transparent and ethical manner, treat customers with respect and meet their obligations with due diligence and within reasonable time". Nevertheless, the case pleaded is confined to a cause of action in debt or for damages for breach of contract. 38In paragraph 3 of its written submissions dated 21 September 2012 the defendant proffered the following as "[the] real issues in dispute (as the defendant understands them to be)": (a) Whether the plaintiff was Totally Disabled due to "Accidental Injury" as defined by the policy. If not, no benefits are payable under the policy, there having been no breach by the defendant of its obligations under the policy and the claim must fail. (b) Whether the responsibility for the termination of the policy on 30 June 2010 [sic] rests with the plaintiff (for not paying premiums) or the defendant (on the ground that the plaintiff was entitled to the Waiver of Premium Benefit under clause 6.1.3 of the policy at the relevant time). (c) The quantum of any benefit to which the plaintiff might be entitled. (d) Whether the plaintiff has any (and, if so, what) entitlement to the payment of interest under s 57 of the Insurance Contracts Act 1984 (Cth). 39At the commencement of the hearing, on 26 September 2012, the parties agreed with this statement of the real questions in dispute. They adduced their evidence, and entered upon final submissions, on that basis. The plaintiff made his submissions in chief, and the defendant made a substantial start on its submissions, before the day's end. 40The length of the adjournment reflected, in large part, the unavailability of the plaintiff. 41During the period of the adjournment he drew breath. Shortly before the adjourned date he filed and served fresh written submissions (dated 16 November 2012) entitled "Issues in Dispute filed by the plaintiff at 16 November 2012". 42In that document he canvassed afresh the defendant's written submissions dated 21 September 2012; suggested that it was not open to the defendant, on the pleadings, to rely upon the existence of a pre-existing injury; and contended that the defendant must be taken to have admitted liability under the policy. 43At the commencement of the hearing on the adjourned date, consideration was given to the plaintiff's attempt to redefine the questions for determination. Having regard to the fact that, throughout the first day of hearing the parties had, by agreement, proceeded on the basis that the primary issue was whether (in light of the undisputed medical evidence) the plaintiff was "Totally Disabled" due to "Accidental Injury" within the meaning of the policy, I granted the defendant leave to amend its defence to remove any ambiguity. Pursuant to that leave, an amended defence was filed on that day (19 November 2012) and the hearing proceeded to a conclusion. The defendant's reliance upon the existence of a pre-existing injury as a ground for denial of liability was squarely within the questions for determination, and fairly litigated. 44In the course of his submissions, the plaintiff more than once attributed bad faith to the defendant. In my assessment, the evidence does not support any finding of bad faith, either in formation, or in the defendant's performance, of the parties' contract. Nor does the evidence disclose any misrepresentation to the plaintiff, or any other form of misleading or deceptive conduct attributable to the defendant, that might be thought to vitiate the contract or otherwise entitle the plaintiff to remedial orders. The parameters of the parties' dispute remain defined by the terms of their contract. 45The plaintiff's allegations of bad faith appear to have taken their colour from his expectation of immediate and unconditional acceptance of his claim; his failure or refusal to provide information sought by the defendant for the purpose of investigation of his claim; his request to the defendant, after lodgement of the claim, not to direct debit his bank account for premium payments; his non-payment of premium instalments thereafter; and his insistence that he was entitled to the benefit of a "waiver of premiums" under the policy. 46Clause 6.1.3 of the policy (entitled "Waiver of Premium Benefit") was in the following terms: "If the Life Insured [the plaintiff] becomes totally disabled for longer than the Waiting Period [30 days], We will waive premiums as and when they fall due from the end of the Waiting Period until the end of the Benefit Period or until the date when total disablement ceases, whichever first occurs. Premium payments will recommence from the date on which the waiving of premium ceases." 47That clause qualified the following provisions relating to the payment of premiums: "3.5 Premiums 3.5.1.1 Payment of Premiums Premiums must be paid [in this case, monthly].... 3.5.2 If You Stop Paying Premiums 30 days of grace are allowed for the payment of premiums during which the Policy will remain in force. If you do not pay premiums in full within 30 days from the premium due date the policy will lapse and its benefits will cease." 48If (as I have found) the plaintiff was not "totally disabled" within the meaning of the policy, then there was no entitlement to the Waiver of Premium benefit under clause 6.1.3 and the policy automatically lapsed by operation of clause 3.5.2. 49That is what happened here. The plaintiff stopped the payment of premiums to the defendant. He insisted that he was entitled to receive the Waiver of Premium Benefit. When the defendant warned him that it took the view that the Waiver of Premium benefit had not been engaged because it was still investigating his claim and he had not complied with a provision of the policy (clause 3.18) requiring the provision of evidence in support of his claim, he stuck to his guns. When the defendant wrote to him stating that it had not received payment of premiums due, and that the policy had lapsed, but offering to reinstate the policy upon an application made within a specified time, he maintained his position. He made no application for reinstatement. He paid no premiums. 50Right up to the time of commencement of these proceedings, the plaintiff refrained from making payments of premium, and engaged in disputation about: (a) his liability to pay any premiums whilst "on claim"; and (b) the provision of information. 51Upon a proper construction of clause 6.1.3 of the policy, the plaintiff never acquired an entitlement to the Waiver of Premium benefit because he was never "totally disabled" within the meaning of that term as defined by the policy. The expression "totally disabled" in clause 6.1.3, in the context of clause 6 generally, incorporated the elements of the definition of "total disablement", including the requirement that disablement be "due to Accidental Injury". Accordingly, the plaintiff could not bring himself within the condition precedent for which clause 6.1.3 provided. 52Had the plaintiff in fact been "totally disabled" within the meaning of the policy he would, in my opinion, have been entitled to claim the Waiver of Premiums benefit. On its proper construction, clause 6.1.3 constitutes a promise to waive premiums. It was supported by consideration arising from the plaintiff's entry into the contract and payment of premiums up to the time he suffered injury. The clause did not depend for its operation on a discrete decision being made by the defendant to "waive" premiums. It operated automatically upon "the Life Assured" becoming "totally disabled for longer than the waiting period". 53The question whether, as the defendant would have it, the plaintiff was disentitled from having the benefit of a waiver of premiums under clause 6.1.3, because he had not complied with a requirement in clause 3.18 of the policy that he provide evidence in support of his claim, is a separate question. 54Clause 3.18 is in the following terms: "3.18 Claims 3.18.1 Claim Requirements and Conditions All conditions necessary to entitle a claim to be made must be met during the currency of the Policy. Written notice containing full particulars of any circumstances in respect of which a claim is to be made must be given to Us [the defendant] as soon as possible. Claim forms can be requested by writing to Claims Department, AIG Life, Head Office or email (claims@aiglife.com.au). Payment of a Sum Insured or monthly benefit will not be made for any period more than one month prior to the giving of such written notice. All certificates and evidence required by Us [the defendant] will be furnished at Your [ie, the plaintiff's] expense within 30 days of the date of the written notice and will be in the form and of the nature as We [the defendant] may request. [Emphasis added]" 55The defendant relies upon the last paragraph of clause 3.18.1. It says that, by that paragraph, clause 3.18.1 imposed a condition on the availability of benefits under the policy (including the Waiver of Premiums benefit) that the plaintiff provide any evidence required by it in support of his claim within 30 days of written notice of a claim. It says that the plaintiff failed to comply with that condition and, having failed to comply with the condition by the provision of information required by it, he had no entitlement to a waiver of premiums benefit. 56In my opinion, clause 3.18.1 did not impose on the plaintiff an obligation inter-dependent with the obligation on the defendant, under clause 6.1.3, to waive premiums in the event of the plaintiff becoming "totally disabled for longer than the waiting period". If (as the defendant would have it) the plaintiff was in breach of an obligation under clause 3.18.1, at least in circumstances in which that breach was not repudiatory in character, the fact of the breach could not, of itself, deprive the plaintiff of an entitlement, otherwise available, under clause 6.1.3. 57The evidence establishes disputation between the plaintiff and the defendant about the provision of information, each claiming the other to be at fault. There is no suggestion that the conduct of either party bore the character of a repudiation of obligations under the policy. Albeit that they may have been at cross purposes, or engaging in a process of miscommunication, both were attempting to perform and enforce their respective rights. In these circumstances, I see no warrant for a denial of a waiver of premiums benefit under clause 6.1.3 in the operation of clause 3.18.1. 58The true impediment to the operation of clause 6.1.3 in favour of the plaintiff is in the definition of "totally disabled" that harks back to the definition of "total disablement" and the need for establishment of an "Accidental Injury". On the construction I have attributed to it, the policy would operate in the plaintiff's favour if he could bring himself within the definition of "Total Disablement" and would not if he could not. 59The plaintiff seeks to overcome all difficulties standing in his way by reliance upon what he contends are admissions of liability made by the defendant. The most powerful of these is the fact that, on or about 8 January 2010, the defendant deposited in his bank account the sum of $3,224.46 which (by a letter dated 22 January 2010 it sent to him) it explained as representing a payment of $2,654.80 referable to "Total Disablement Benefit for the period 5/11/2009 to 4/1/2010" and a sum of $569.66 representing "Refund of Premiums for the period from 5/6/2009 to 4/1/2010". 60Other alleged admissions are, first, an equivocal notation in internal records of the defendant not communicated to the plaintiff and, secondly, a general assurance in a circular letter, following a corporate restructure, that contractual obligations generally would be honoured. Neither qualifies as an admission in fact. 61The fact of the defendant's payment of January 2010, viewed in isolation, may suggest that the defendant had accepted liability on the plaintiff's claim under the policy. 62Had the defendant had, at the time it made its deposit to the plaintiff's bank account, the knowledge of the plaintiff's medical condition revealed in the radiologist's report of 8 July 2009 and medical reports bearing dates between that date and 30 December 2009, an inference that the defendant had made an informed decision to accept liability in January 2010 might have been more readily available. 63However, as the correspondence between the parties demonstrates, at the time the defendant deposited money into the plaintiff's bank account and for some time thereafter, it did not have a copy of the file of the plaintiff's Worker's Compensation insurer (that would have revealed the medical reports of 2009) and it reserved its rights pending completion of ongoing investigation of the plaintiff's claim. The fact of that reservation of rights can be seen in letters addressed by the defendant to the plaintiff respectively dated 25 November 2009, 22 January 2010 and 22 February 2010. 64At or about the time the defendant made its payment to the plaintiff it received a "Medical Attendance Statement" dated 23 December 2009, signed by the plaintiff's General Practitioner, which referred to the plaintiff's 1996 injuries but suggested that he "had fully recovered" from them. That statement was evidently not received in the defendant's Claims Department until 6 January 2010, although it may have been despatched to the defendant on 4 January 2010. In any event, the defendant made plain to the plaintiff in its letter dated 25 November 2009 that it could not accept his claim until it had received the file of his worker's compensation insurer and, according to the defendant's standard procedure, verified his medical history. 65That process of verification continued throughout the early months of 2010, at least. 66By a medical report dated 28 March 2010, the plaintiff's general practitioner reported his "Current Diagnosis" in the following terms: "Injury to Left Ankile Bruised Talus bone, sprained deltoid and lateral ligament complex, large effusion into ankle joint - complicated with secondary aggravation of old right ankle injury (Previously symptomless) and Acute Strain to Lumbosacral Spine - both due to unequal weight bearing [Emphasis added]". 67It is not entirely clear when a copy of that report came into the possession of the defendant, but a copy was provided to it under cover of a letter dated 2 July 2010 written to it by the plaintiff's then solicitors. 68It bears a date stamp "07 April 2010" consistent with its receipt by someone on that date. However, a letter dated 2 June 2010 addressed by the defendant to the plaintiff's solicitor records a denial of receipt of the report, and the plaintiff's solicitors' letter dated 2 July 2010 is responsive to that letter. Furthermore, the copy of the report provided to the defendant by the solicitors bears the "07 April 2010" date stamp. 69I infer that the defendant received the report in the ordinary course of the post shortly after 2 July 2010. I do not exclude the possibility that a copy of the report may have been emailed to the defendant on 2 July 2010, but the evidence does not permit me to find that as a fact. 70The next letter in this sequence of correspondence appears to be a letter dated 18 October 2010 written by the plaintiff, personally, to the defendant. The plaintiff's solicitors appear to have dropped out of the picture, vis á vis the defendant at least, upon their provision of his GP's report to the defendant in early July 2010. 71All in all, contrary to the plaintiff's contentions, the evidence does not permit a finding of fact that the defendant had admitted liability under the policy. In defending the plaintiff's claim in these proceedings it has not been required to resile from any admission or any acceptance of the plaintiff's claim. 72If, contrary to my findings, the plaintiff is entitled to succeed on his claim to a Total Disablement Benefit, it would, I find, be a benefit enjoyment of which (calculated in accordance with clauses 3.18.1 and 6.1.1.2 of the policy) has continued until, at least, the time of judgment. The defendant does not dispute that the plaintiff continues to be disabled to the requisite degree; only that his disablement does not fall within the cover provided by the policy because it cannot be said to have been "due to Accidental Injury" within the policy definition of "Total Disablement". 73By virtue of clause 3.18.1, a Sum Insured or monthly benefit is not payable under the policy for any period more than one month prior to the giving of written notice of the Life Insured's claim to the defendant. 74The plaintiff's claim form was dated, by him, 16 November 2009. It bears a stamp of the defendant's Claims Department as having been received on 17 November 2009. For the purpose of calculation of any benefit payable to the plaintiff, the defendant accepts that the date of written notice of the plaintiff's claim to it should be taken to have been 16 November 2009. I act on that basis. 75Upon a strict application of clause 3.18.1, the date of commencement of any benefit payable to the plaintiff should be 16 October 2009. No monthly benefits were payable before that date. 76Notwithstanding that fact, the plaintiff has asserted in these proceedings - and, for ease of calculation, the defendant has accepted - that any benefit to which the plaintiff is entitled should have as its date of commencement the date of his injury; namely, 6 May 2009. As a matter of convenience, I will proceed on the same basis. 77The "benefit period" identified in the "Policy Schedule" for the plaintiff's disability income cover under the policy is five years: policy clauses 6.1.1 and 6.1.1.2(i). 78If the plaintiff had an entitlement to receive a Total Disablement Benefit, and if his total disablement were to continue for the full "benefit period", it would, on the approach taken by the parties in these proceedings, be an entitlement running from 6 May 2009 until 5 May 2014. 79Upon the assumption that the policy remains on foot (notwithstanding the plaintiff's non-payment of premiums and his lack of an entitlement to a waiver of premium benefit), he would be entitled to the Total Disablement Benefit Amount (calculated in accordance with clause 6.1.1.2) between 6 May 2009 and the time of judgment, together with a declaration confirming his entitlement to receive future benefits on a monthly basis (until 5 May 2014) for as long as he continues to satisfy the definition of "Totally Disabled" and other requirements of the Policy. 80The parties are agreed that such entitlement as the plaintiff may have to payment of a Total Disablement Benefit Amount is an entitlement to indemnification for his loss of income (governed by clause 6.1.1.2) rather than an entitlement to an agreed value of benefit (governed by clause 6.1.1.1.) 81Calculation of such, if any, amount as might have been payable to the plaintiff is governed by clause 6.1.1.2 (which provides for the initial amount of benefit payable to be the lesser of a specified sum and a percentage of monthly pre-disablement income), clause 6.1.9 (which governs "claim offsets" which, in this case, relate to the plaintiff's receipt of worker's compensation payments), clause 3.25 (which, for the purpose of clause 6.1.9, establishes that the plaintiff falls within the "occupation category" described as "Category C") and clause 6.2 (which provides for a Consumer Price Index based "Claim Escalation Benefit"). 82In the calculations it has proffered to the Court, the defendant assumes that the plaintiff seeks that any monthly benefit payable to him be calculated on the basis of the income derived by him in the 2009 financial year ($37,718.00) rather than his income in the preceding financial year ($10,818.00). It was content to proceed on that basis. So too am I. 83In final submissions to the Court, the defendant presented a three page document (entitled "Defendant's Quantum Schedule") setting out the Total Disablement Benefit Amount to which the plaintiff would be entitled. The calculations set out in the document are based upon his 2009 financial year income. They allow for deduction of worker's compensation payments made to him. They also allow an escalating claims benefit in his favour. They deduct the amount paid to him in January 2010. For the purpose of this judgment, I adopt those calculations as accurate. 84Leaving aside the question whether the plaintiff (if successful in the proceedings) would have been allowed interest under s 57 of the Insurance Contracts Act 1984 (Cth), the amount of such entitlement as the plaintiff may have had, calculated to the date of judgment would have been $95,271.26. Going forward, the plaintiff would be entitled to a net monthly benefit of $2,353.96, for a maximum of 13 months and a total of $30,601.48. Upon an assumption that he were to remain totally disabled for the full "benefit period" (ie, until 5 May 2014), the total payable for that whole period would be $125,872.77 (the sum of $95,271.26 and $30,601.48). 85The plaintiff's total entitlement, without any allowance for interest, over the five year benefit period (between 2009 and 2014) would be $125,872.77. 86The defendant contends that the plaintiff should be allowed no s 57 interest because , it contends, the plaintiff never provided it with information requested for its due consideration of his claim and, accordingly (upon an application of the law elaborated in NRMA Insurance Limited v Tatt (1989) 94 FLR 339 at 355, Sayseng v Kellog Superannuation (2007) 213 FLR 174 and Newey v First Superannuation Pty Limited [2009] NSWSC 1100), it was never "unreasonable" within the meaning of s 57 for the defendant to have withheld payment. 87There is merit in the defendant's submission, at least to the extent that the plaintiff may have contributed to delays on the part of the defendant in forming a view about whether the plaintiff had suffered an "Accidental Injury" within the meaning of the policy. 88If (as I have inferred) the medical report of the plaintiff's general practitioner dated 28 March 2010 was not provided to the defendant earlier than the plaintiff's solicitors' letter dated 2 July 2010 or thereabouts, and if (contrary to my findings) that report had grounded the plaintiff's claim to have suffered an "Accidental Injury", one might reasonably have expected the defendant to have made an admission of liability within a month or so thereafter, and the plaintiff to have resolved disputes about his financial circumstances within a further month or so after that. 89Upon these assumptions, had the plaintiff (contrary to my findings) established an entitlement under the policy I would have allowed him s 57 interest from the expiry of three months from the date of the defendant's receipt of the plaintiff's solicitors' letter dated 2 July 2010. 90As the evidence does not establish the date of receipt, allowing for the fact that the sender and the receiver were located in different states (NSW and Victoria respectively) I infer, for the sake of convenience, that the letter would have been received no later than 9 July 2010. 918 November 2010 marks the expiry of three months from that date. For the purpose of s 57 my finding is that from that date, but not earlier, it would have been unreasonable for the defendant (in the state of affairs I have assumed) to have withheld payment from the plaintiff. 92As it happens, however, on the principal findings I have made the plaintiff has established no entitlement to relief and his proceedings must be dismissed. 93Not unnaturally, the defendant has filed no cross claim seeking to recover the $3,224.46 it paid to the plaintiff in January 2010. It must be taken to have abandoned any entitlement for its repayment. The proceedings between the parties must be drawn to a close. 94In these circumstances, the only substantive order required to bring the proceedings to finality (subject to any appeal) is an order that the proceedings be dismissed. 95Prima facie, the plaintiff must be required to pay the defendant's costs, on the principle that "costs follow the event". However, I will allow the parties an opportunity to be heard on whether a different form of costs order is more appropriate. ********** 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: 03 April 2013