Playing policy holey moley and losing | Australian Markets

Financial Newswire’s life/risk knowledgeable, Col Fullagar writes that the ruling in a current courtroom case gives a sober reminder of the delicate nuances of policy wording and the significance of contemplating all attainable declare circumstances beneath the policy.

BACKGROUND

May 2014 – Mr R utilized for insurance coverage that included Total and Permanent Disability (“TPD”) Any Occupation cowl. The related definition was:

“ …… solely as a result of of a Sickness or Injury, the Life Insured has not been working in any occupation for 3 consecutive months and, in our opinion, after consideration of medical and some other proof, is incapacitated to such an extent as to render the Life Insured unlikely ever to have the ability to work in any occupation for which they’re fairly suited by coaching training of expertise ………. “

As half of his software, Mr R represented that he had by no means had or acquired medical advice or remedy for back or neck ache.

In September 2014 – Mr R’s policy began.

From July 2015 to June 2016, Mr R labored as a spray painter and panel beater.

In June 2016, Mr R was concerned in a motor vehicle accident which triggered extreme accidents to his neck and shoulder.

In May 2017, Mr R ceased work to endure cervical backbone surgical procedure. On medical advice, he has not labored since.

In September 2017, Mr R made a declare beneath his TPD insurance coverage for “compression of spinal cord C5/C6” and “tear in left shoulder”

In April 2018, and during the declare evaluation course of, the insurer turned conscious that Mr’s representations in regard to back and neck ache had been incorrect as he had acquired medical advice and remedy for each previous to 2014. As a outcome, the insurer exercised its rights beneath Section 29 of the Insurance Contracts Act 1984 and retrospectively utilized a cervical backbone exclusion to the policy:

“No benefit is payable under this policy for any claim resulting directly or indirectly from any disease or disorder of the cervical spine, including its intervertebral discs, nerve roots or supporting musculature or any combination thereof”.

The exclusion went on to make clear:

“This exclusion does not apply where, in the opinion of independent medical assessments acceptable to (THE INSURER), the disability was not to any extent caused by, or attributable to, directly or indirectly, any preexisting condition relating to the excluded disease or disorder.”

The insurer then proceeded to say no the declare by manner of reliance on the cervical backbone exclusion.

Mr R commenced proceedings in opposition to the insurer indicating partly that, however the cervical backbone exclusion, the shoulder harm of itself glad the related definition.

INSURER (V) COURT POSITION

Citing the wording of the related definition, the insurer indicated Mr R was required to show:

• He was incapacitated to the related degree; and
• The incapacitation was solely as a result of of illness or harm.

The insurer then asserted that, within the case of Mr R “ …. incapacity arises from a constellation of symptoms, some of which derive from the neck and some from the shoulder … (and) ….. the causes are concurrent and interdependent, such that the court cannot be satisfied that, in the absence of the cervical spine injury, Mr R would be totally and permanently disabled.”

Additional to the above, the insurer maintained that even when the causes weren’t interdependent, any declare arising “directly or indirectly” from the cervical backbone is excluded and thus, “ …. if there is ANY connection at all between the incapacitation and the cervical spine, the claim will be excluded.”

Finally, the insurer asserted that the policy required Mr R to be incapacitated for work “solely because of sickness or injury” and that no benefit was payable for any declare ensuing from any illness or dysfunction of the cervical backbone until “the disability” was to not any extent brought on by or attributable to the pre-existing situation. To the extent that “the disability comprises all and any injuries that contribute to the incapacity and Mr R’s overall incapacity comprises both neck and shoulder injuries, and the neck is a pre-existing condition, he cannot recover.”

The insurer was primarily counting on an previous English doctrine to disclaim the declare, the so-called ‘Wayne Tank Principle’ whereby if there are two or more proximate causes of injury, one which is roofed by the policy and one which is excluded, the exclusion applies to the entire of the declare. This resolution had by no means been ruled upon in a TPD declare.

However, the courtroom noticed it in a different way ……..

“(THE INSURER)’s interpretation of the exclusion clause does not, in my view, express the intention of the parties. Somewhat paradoxically, on the (INSURER’S) submission, Mr R could recover if he fractured his cervical spine and was rendered paraplegic because his disability in that event – paraplegia – although affecting the same body part, would not be to any extent caused by the pre-existing condition. But on (INSURER)’s analysis, injury to almost any other body part would not be covered because his disability would inevitably be impacted by his pre-existing spinal condition.”

“To recover, Mr R must be able to establish that he is unlikely ever to be able to work in any occupation solely because of a sickness or injury. The exclusion clause requires that the disability be caused by something other than the pre-existing disease or disorder.”

“The wording of the policy does not mean Mr R is precluded from recovering if his shoulder injury alone is sufficient to render him incapacitated for work.” 

In abstract, the Court discovered that albeit the retrospectively utilized cervical backbone exclusion utilized to the declare;

• Mr R was not required to show that none of his signs had been brought on by issues related along with his cervical backbone,
• Mr R was entitled to depend on his shoulder harm to get well beneath the policy if solely as a result of of the shoulder harm he was incapacitated for work to the related degree, and
• Once Mr R established on acceptable proof his incapacity for work on the premise of the shoulder harm alone, the onus was on the insurer to supply proof of the bodily necessities of an occupation which comprised duties that Mr R had the capability to carry out. The insurer proffered no such proof.

(Rich v TAL, 2024, VCC 1844)

IMPLICATIONS

Whilst arguably, and from a lay perspective, commonsense prevailed, to the extent the matter was debated in courtroom there have been no ensures of such.

This case could have implications in help of insured’s who concurrently undergo from separate and distinct declare occasions the place one is excluded beneath the policy phrases ie successfully countering the Wane Tank Principle.

The irony on this matter is that there seems little completely different the adviser might have finished; perhaps there might need been higher disclosure however who’s to say the applying course of was not completely strong.

It might effectively be that but again, with regards to risk insurance coverage, the Latin Maxum “Crapus Happens” will generally apply.

Yes, the ruling went in favour of Mr R, nevertheless his victory was removed from absolute. He ceased working in 2018, but it surely was more than 6 years earlier than he benefited from the insurance coverage he effected that was supposed to supply “peace of mind.” How he survived financially and emotionally within the intervening period shouldn’t be publicly recognized.

The insurer definitely “lost” with not solely the ruling going in opposition to them but in addition an order that it pay curiosity on the insured sum, in addition to its own and a proportion of Mr R’s prices totalling in extra of $1 million.

The industry fame and adviser confidence ranges no doubt took a hit.

As the Prince mentioned on the conclusion of Romeo and Juliet (Act 5, Scene 3, Line 293) “All are punished”

Col Fullagar is the principal of Integrity Resolutions Pty Ltd