Sargeant v FSS Trustee Corporation [2018] NSWSC 1997

Supreme Court New South Wales

Medium Neutral Citation: Sargeant v FSS Trustee Corporation [2018] NSWSC 1997 Hearing dates: 18, 19, 20, 21, 22 June 2018 Date of orders: 21 December 2018 Decision date: 21 December 2018 Jurisdiction: Equity Before: Parker J Decision: See [136] 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 – duties to act reasonably and in good faith – content of duties – effect of delay – where delay is the result of the claimant routinely serving new evidence on insurer – whether the insurer breached its duties by delaying the determination of the claim

PRACTICE AND PROCEDURE – separate questions – insurance – claim for TPD benefit – entitlement to benefit subject on proof to insurer's satisfaction – "two stage" approach – discussion of whether the "two stage" approach is necessary in all cases – discussion of whether the Court can decide the second stage "on the papers" Legislation Cited: Evidence Act 1995 (NSW), s 79 Industrial Relations Act 1996 (NSW), s 154 Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Hahn v Commissioner of Police [2014] NSWIRComm 13 Hahn v Commissioner of Police (No 2) [2014] NSWIRComm 46 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Hellessey v MetLife Insurance Ltd [2017] 19 ANZ Insurance Cases 62-152; [2017] NSWSC 1284 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Mehmet v IOOF Investment Management Ltd [2015] NSWSC 1914 MetLife Insurance Ltd v Hellessey [2018] NSWCA 307 Newling v FSS Trustee Corporation (No 2) [2018] NSWSC 1405 Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 Category: Principal judgment Parties: Bronwyn Sargeant (Plaintiff) FSS Trustee Corporation (First Defendant) MetLife Insurance Limited (Second Defendant) Representation: Counsel: RA Cavanagh SC/CJ Callaway (Plaintiff) M Windsor SC/P Glover (Second Defendant)