Newling v FSS Trustee Corporation (No 2) [2018] NSWSC 1405

Supreme Court New South Wales

Medium Neutral Citation: Newling v FSS Trustee Corporation (No 2) [2018] NSWSC 1405 Hearing dates: 28, 29 May 2018; 12, 31 July 2018; subsequent written submissions ending 20 August 2018. Date of orders: 14 September 2018 Decision date: 14 September 2018 Jurisdiction: Equity Before: Parker J Decision: At [247] Catchwords: INSURANCE – accident and sickness insurance – where policy taken out by trustee of superannuation fund with insurer for benefit of its members – claim for "total and permanent disablement" (TPD) benefit – benefit for TPD payable if claimant 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 – onus on claimant to provide proof to satisfaction of insurer

INSURANCE – duty to act reasonably – content of duty – reasonableness in assessing evidence – conflicting expert reports – onus on claimant to demonstrate that particular evidence should be preferred to other evidence when there is a conflict

INSURANCE – duty to act reasonably – content of duty – where insurer makes a mistake or accidentally overlooks material during assessment process – no breach of duty in circumstances where there is an opportunity for the claimant to bring the mistake to the attention of the insurer

INSURANCE – duty of utmost good faith – content of duty – obligation for insurer to give reasons for their decision – no general obligation

INSURANCE – duty of utmost good faith – content of duty – reasonable and fair process for assessment of claim – where claimant represented by solicitors