Susan Buswell v TAL Life Limited [2018] NSWSC 1507

Supreme Court New South Wales

Medium Neutral Citation: Susan Buswell v TAL Life Limited [2018] NSWSC 1507 Hearing dates: 13 September 2018 Decision date: 10 October 2018 Jurisdiction: Equity Before: White J Decision: (1) Declare that the amount of $300,000 paid to the plaintiff by her employer or its insurer in settlement of her damages claim does not fall under the definition of "Other Disability Income" in the Salary Continuance Insurance Policy (No GR 860-SC) ("the Policy") underwritten by the defendant. (2) Order that the defendant reinstate the plaintiff's monthly benefits under the policy. (3) Order that the defendant pay all arrears under the policy plus interest at the rate or rates prescribed for the purposes of s 57(3) of the Insurance Contracts Act 1984 (Cth) from the dates instalments of arrears were payable. (4) Order that the defendant pay the plaintiff's costs. Catchwords: INSURANCE – construction of policy – income protection insurance – whether sum given in settlement of a claim for damages for psychological injury constituted Other Disability Income for purposes of policy – where Other Disability Income was deducted from monthly benefits – whether settlement sum was income or capital – whether settlement sum was a benefit under workers' compensation legislation Legislation Cited: Constitution, s 76 Income Tax Assessment Act 1997 (Cth), s 6-5 Insurance Contracts Act 1984 (Cth), s 57 Judiciary Act 1903 (Cth), s 79 Workers Compensation Act 1987 (NSW), s 151 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 315 Cases Cited: Atlas Tiles Ltd v Briers (1978) 144 CLR 202 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 BTR Engineering (Aust) Ltd v Dana Corp [2000] VSC 246 CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64 Cullen v Trappell (1980) 146 CLR 1 Federal Commissioner of Taxation v Montgomery (1999) 198 CLR 639 Graham v Baker (1961) 106 CLR 340 Grljak v Trivan Pty Ltd (in liq) (1994) 35 NSWLR 82 Manser v Spry (1994) 181 CLR 428 Medlin v State Government Insurance Commission (1995) 182 CLR 1 National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 New South Wales v Davies (1998) 43 NSWLR 182 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Opitz (1945) 70 CLR 141 Redding v Lee (1983) 151 CLR 117 Rinehart v Welker (2012) 95 NSWLR 221; [2012] NSWCA 95 Sydney Refractive Surgery Centre Pty Ltd v Commissioner of Taxation [2008] FCA 454; (2008) 247 ALR 313 Category: Principal judgment Parties: Susan Buswell (Plaintiff) TAL Life Limited (Defendant) Representation: Counsel: R Cavanagh SC with T Ower A S Bell SC with T Mehigan