Case Review: Ivan Mabbett v Watson Wyatt Superannuation Pty Limited and Anor [2008] NSWSC 365

Published 29 Oct 2015

The Plaintiff Mr Mabbett was employed by P&O for 6 months in 2001. On 9 July 2001 he tendered his resignation but was asked to stay until the end of his shift. He claimed that he sustained a back injury during that shift and that this injury ultimately left him Totally and Permanently Disabled (TPD) and he made a claim on his superannuation insurance for TPD benefits.

In November 2001 he began working for a construction company called ABC in the area of demolition.

The insurer rejected his claim based on two grounds:

  1. The definition of TPD in the insurance policy stated that the claimant had to be absent from work for 6 months in a row from his Employer. The insurer said that because Mr Mabbett started working at ABC within 6 months he could not satisfy the definition.
  2. The insurer also felt that Mr Mabbett was not “unlikely to ever return to regular remunerative employment” as was necessary within the TPD definition.

Subsequently Mr Mabbett commenced proceedings in the Supreme Court.

In relation to the first ground, Mr Mabbett successfully argued a technical point and won. The actual contract defined “Employer” specifically as P&O, his employer at the time he entered the agreement.

In making his decision Justice Einstein followed the case law and held that in a commercial contract, such as TPD contracts, the plain wording of the document will be followed. The insurer had tied their own hands by defining “Employer” as P&O and as such Mr Mabbett was not defeated on this ground.

However, Mr Mabbett did have serious issues in relation to his credibility. Among other things, Justice Einstein highlighted several discrepancies in his evidence:

  1. In his initial claim forms Mr Mabbett listed that he was working at ABC part-time. Later ABC records revealed that he was working full-time hours.
  2. Mr Mabbett provided conflicting evidence as to why he stopped working at ABC. At first he said it was due to back pain but later conceded it was because the company was no longer going to trade in the field of demolition.
  3. Additionally, he failed to disclose a prior history of back injuries.

Justice Einstein ultimately found that Mr Mabbett’s credibility was not good and the evidence did not support him being “unlikely to ever engage in regular remunerative work again.” His claim failed.

How We Can Help You With Your TPD Claim

Cases like these highlight the importance of retaining knowledgeable, expert lawyers for your TPD claim.

We are able to give expert advice in relation to the technical aspects of contract and insurance law and ensure that your claim has the best chance of success.

If you come to us before you make your claim we can help you by providing an expert submission and ensuring you do not make errors or false statements in your initial claim forms that could ultimately reflect poorly on your credibility.

If you have an injury or disease that has caused you to cease work permanently – call us now!

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