› Whether second defendant validly rejected plaintiff’s claim
› Whether plaintiff was totally and permanently disabled at the assessment date.
Insurance
› Claims
› Utmost good faith
› Whether second defendant breached duty of utmost good faith
› Whether second defendant ‘constructively denied’ the plaintiff’s claim.
Quick Take
1An insurer determining a TPD claim must act reasonably in its decision-making process; the test is not whether the decision was so unreasonable that no reasonable insurer could have made it (akin to Wednesbury unreasonableness), but whether the insurer breached its duty of utmost good faith and fair dealing by acting unreasonably in considering and determining the claim.
2Medical evidence created after the assessment date, particularly longitudinal evidence from treating practitioners, may be more reliable than contemporaneous evidence in determining whether a claimant's psychological incapacity satisfies a TPD definition, and an insurer acts unreasonably by systematically preferring early, equivocal medical opinions over later, reasoned longitudinal assessments.
3Facebook posts and social activities of a person suffering PTSD and depression should not be interpreted by an insurer on a lay basis as inconsistent with claimed psychological symptoms; where treating medical professionals have been informed of and explained such activities, the insurer acts unreasonably in substituting its own lay assessment of their psychological significance.
Case Details
Citation[2017] NSWSC 1284
CourtNSWSC
JurisdictionNew South Wales
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