The Queensland Court of Appeal held that where an insurer's opinion that the insured is totally and permanently disabled is a precondition to the obligation to pay under the policy, the insured's claim when that opinion is improperly formed sounds in damages for breach of contract (breach of the implied duty to act properly in forming the opinion) rather than in debt. The Court also considered whether evidence coming into existence after the insurer's determination could be taken into account in assessing the claim, an issue relevant to the measure of damages and the proper scope of judicial review of the insurer's decision-making process. The appeal was dismissed with costs.
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