Hitchens v Zurich Australia Ltd [2015] NSWSC 825

Supreme Court New South Wales

Medium Neutral Citation: Hitchens v Zurich Australia Ltd [2015] NSWSC 825 Hearing dates: 21-24, 28-31 July 2014; 4, 7, 8 and 11 August 2014 Decision date: 30 June 2015 Jurisdiction: Equity Division Before: White J Decision: Judgment for the first defendant. Catchwords: INSURANCE – duty of disclosure – concealment – waiver – fraudulent misrepresentation – claim by insured against insurer for damages – insured alleges that the insurer wrongfully repudiated two policies of insurance – whether insured's answers to pre-contractual proposal form questions were knowingly false – whether insured's answers breached his duty of disclosure – whether insurer waived compliance with the duty of disclosure – whether insurer was put on notice by a fair presentation of risk – held that: (1) the insured fraudulently misrepresented his medical history; (2) the insured fraudulently breached his duty of disclosure by failing to disclose his regular and extended use of strong opioid medication which were obtained from different doctors without advising any of them that he obtained medication from the others; (3) the insurer did not waive the duty of disclosure by failing to make further inquiries; (4) the insurer validly avoided the policies of insurance Legislation Cited: Evidence Act 1995 (NSW) Insurance Contracts Act 1984 (Cth) Marine Insurance Act 1909 (Cth) Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 Asfar & Co v Blundell [1896] 1 QB 123 Briginshaw v Briginshaw (1938) 60 CLR 336 Carter v Boehm (1766) 3 Burr 1905; 97 ER 1162 Click here to enter text.Claude R Ogden & Co Pty Ltd v Reliance Fire Sprinkler Co Pty Ltd [1973] 2 NSWLR 7 Earl of Darnley v London, Chatham and Dover Railway (1867) LR 2 HL 43 General Accident Insurance Asia Limited v Sakr [2001] NSWCA 402; (2001) 11 ANZ Ins Cas 61-508 Greenhill v Federal Insurance Co Limited [1927] 1 KB 65 Jaggar v QBE Insurance International Ltd [2007] 2 NZLR 336 Liga Knitting Mills v Lombard Insurance Co Limited (1984) 3 ANZ Ins Cas 60-551 Orb Holdings Pty Ltd v Lombard Insurance Co (Australia) Limited [1995] 2 Qd R 51 Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd [2001] NSWCA 20; (2001) 50 NSWLR 679 Prudential Insurance Co of America v Saxe 134 F 2d 16 (1943) Twenty-First Maylux Pty Ltd v Mercantile Mutual Insurance (Australia) Limited [1990] VR 919 WISE Underwriting Agency Ltd v Grupo Nacional Provincial SA [2004] EWCA Civ 962; [2004] 2 All ER (Comm) 613; [2004] 2 Lloyd's Law Rep 483 Texts Cited: Report on Insurance Contracts [1982] ALRC 20Click here to enter text. Ewart, Waiver Distributed (1917) Chap IX MacGillivray on Insurance Law, 7th ed Professor Clarke, The Law of Insurance Contracts, 6th ed Category: Principal judgment Parties: Anthony Hitchens (Plaintiff) Zurich Australia Limited (1st Defendant) Chun Nary Quoe (2nd Defendant) Representation: Counsel: B W Rayment QC with G Beauchamp and M J Gollan (Plaintiff) J Gleeson QC with S Walsh (Defendant)