Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd

[2015] NSWCA 104

NSW Court of Appeal

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Interrogate

Catchwords

1. Insurance
2. › Life insurance
3. › Group life insurance
4. › Total and permanent disablement
5. › Definition requiring insurer's opinion as to incapacity
6. › Whether insured person unlikely ever to engage in any occupation reasonably capable of performing by reason of education, training or experience
7. › Whether need for minimal further training precluded finding of capacity
8. › Whether trial judge erred in assessment of incapacity
1. Trusts
2. › Superannuation trusts
3. › Powers of trustee
4. › Duty to form opinion on member's entitlement
5. › Challenge to evaluative judgment
6. › Whether court may substitute its own opinion for that of trustee or insurer
7. › Whether matter should be remitted to trustee
1. Appeal
2. › Appeal by way of rehearing
3. › Review of findings of fact
4. › Application of Warren v Coombes principles
5. › Whether trial judge's factual findings should be disturbed

Quick Take

The expression 'reasonably capable of performing by reason of education, training or experience' in TPD definitions recognises that a person may need to undertake specific training or certification to engage in particular employment for which they are otherwise qualified, and the need for minimal further training (such as learning particular software or operating a cash register) does not mean the person is not already reasonably capable of performing those roles. The Butcher v Port line of authority permitting courts to substitute their own opinion for that of an insurer whose opinion was invalidly formed was left open for future reconsideration, particularly in light of the statutory complaints mechanism under the Superannuation (Resolution of Complaints) Act 1993 (Cth).