Jones v United Super Pty Limited [2016] NSWSC 1551

Supreme Court New South Wales

Medium Neutral Citation: Jones v United Super Pty Limited [2016] NSWSC 1551 Hearing dates: 9, 10 November 2015 Date of orders: 02 November 2016 Decision date: 02 November 2016 Jurisdiction: Equity Before: Brereton J Decision: The decisions of the insurer and the trustee should be declared void; and it should be declared that Mr Jones is totally and permanently disabled within the meaning of the insurance policy. The insurer should be ordered to pay the sum insured (together with interest) to the superannuation trustee, and the trustee thereupon to pay that sum to Mr Jones. Prima facie, the defendants should pay the plaintiff's costs. The Court directs that the plaintiff bring in short minutes to give effect to this judgment on a date to be fixed. Catchwords: INSURANCE – Accident and sickness insurance – "total and permanent disablement" – "unlikely ever to be able to engage in regular remunerative work" – whether insurer imposed excessively rigorous test for "unlikely ever" – whether insurer failed to take into account psychological as well as physical capacity – "reasonably fitted by education, training or experience" – where insured's vocational history is exclusively in manual labour – whether insured is reasonably fitted by education, training and experience for non-labouring customer service occupations in which he has no vocational history but for which he has some transferable skills acquired in previous occupation – held, the clause requires a connection between the suggested future work, and the insured's past education, training and experience – held, the insured is totally and permanently disabled within policy Cases Cited: Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238; 36 VR 618 Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 Beverley v Tyndall Life Insurance Co Ltd [1999] WASCA 198 Cavill Power Products Pty Ltd v Royle (1991) 42 IR 229 Chammas v Harwood Nominees Pty Limited (1993) 7 ANZ Ins Cas 61-175 Chapman v United Super Pty Ltd [2013] NSWSC 592 Davis v Rio Tinto Staff Superannuation Fund Pty Ltd (2002) 118 FCR 170; [2002] FCA 376 Edwards v Hunter Valley Co-Op Dairy Co Limited (1992) 7 ANZ Ins Cas 61-113 Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300 Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; (2010) 271 ALR 236; (2010) 84 ALJR 726; (2010) 4 ASTLR 110; [2010] HCA 36 Folan v United Super Pty Ltd [2014] NSWSC 343 Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 Hannover Life Re of Australasia Ltd v Colella [2014] VSCA 205 Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57; 83 NSWLR 246 Hannover Life Re of Australia Limited v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-123 Heitman v Guardian Assurance Co Ltd (1992) 7 ANZ Ins Cas 61-107 Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325 Kenan Berk v Westpac Securities Administration Ltd [2010] NSWSC 28 Lazarevic v United Super Pty Ltd [2014] NSWSC 96 Nile v Club Plus Superannuation Pty Limited [2005] NSWSC 55 Rapa v Patience (NSWSC, McLelland J, 4 April 1985, unreported, BC8500888) Repatriation Commission v Hill (2005) 142 FCR 88; [2005] FCAFC 7 Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 TAL Life Ltd v Shuetrim [2016] NSWCA 68 Tonkin v Western Mining Corporation Ltd [1998] WASCA 101 Wells v Australian Aviation Underwriting Pool [2004] QCA 43 Wheeler v FSS Trustee Corporation ATF First State Superannuation Scheme [2016] NSWSC 534 Wyllie v National Mutual Life Association of Australasia Ltd (1997) 217 ALR 324 Ziogos v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme [2015] NSWSC 1385 Texts Cited: Enright & Merkin, Sutton on Insurance Law, 4th ed (2014) Category: Principal judgment Parties: Clinton Keith Robert Jones (plaintiff) United Super Pty Limited (first defendant) Hannover Life Re of Australia Limited (second defendant) Representation: Counsel: G Beauchamp (plaintiff) B K Nolan (defendants)