TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 Hearing dates: 7, 8 March 2016 Decision date: 07 April 2016 Before: Beazley P at [1]; Leeming JA at [2]; Emmett AJA at [214] Decision: In 2015/150468 (TAL's appeal):

1. Appeal allowed.

2. Set aside orders 1-9 made on 19 June 2015, and in lieu thereof dismiss the proceedings as against TAL.

In 2015/151747 (MetLife's appeal):

1. Grant leave to Mr Shuetrim to rely upon the notice of contention dated 8 March 2016.

2. Appeal allowed with costs.

3. Set aside orders 1-9 made on 19 June 2015, and in lieu thereof dismiss the proceedings as against MetLife, with costs. Catchwords: APPEAL – new point on appeal – common ground at trial that court would determine whether "Total and Permanent Disablement" (TPD) clause satisfied if insurer found to have breached obligations to Insured Person – whether insurer should be permitted to depart on appeal from approach taken at trial – where potential unfairness to Insured Person

INSURANCE – life insurance – group policy taken out by trustee of superannuation fund – benefit for TPD payable if Insured Person provided proof to satisfaction of insurer that he or she was so incapacitated as to be "unlikely ever" to return to employment for which he or she was reasonably qualified by education, training or experience – proper construction of "unlikely ever" – whether obligation to accord procedural fairness waived – whether insurers breached obligations to Insured Person by rejecting claims – proper approach to construing letter declining cover – whether, if breach established, claim should be determined by court or remitted to insurer – whether Insured Person satisfied TPD definition