Published 03 Aug 2016
There is a growing body of judicial decisions from the Courts regarding Total and Permanent Disablement (TPD) policies to assist the interpretation of the insurance policies and clarifying ambiguous terms. A key Decision which was handed down in April 2016 was the Court of Appeal decision Metlife ats Shuetrim.
This case involved in a former Police officer claiming to be injured and unable to work due to an anxiety disorder and tennis elbow. He was discharged by the Police as a result of these conditions. He is aged around 38 years in 2016.
As part of Mr Shuetrim’s employment with the Police he was a holder of a specific kind of insurance policy in the event he became TPD, the Police Blue-Ribbon Policy (PBRI). One of the definitions for TPD in the PBRI has of words the effect of “unlikely ever to return to work….”
He had made a claim to the insurer which was rejected and commenced proceedings at the Supreme Court to challenge the insurer’s refusal. At the initial Hearing the Judge ruled in Mr Shuetrim’s favour and determined he satisfied the definition of TPD. The judge applied the test that “unlikely” referred to a less than a 50% chance of Mr Shuetrim being able to ever return to work.
At Appeal the Court unanimously took issue with the test applied by the Judge in the first Decision. It was established that the word unlikely does not mean a less than 50% chance but rather no real chance of ever returning to work. This significantly raises the bar in relation to the test for TPD.
The Court of Appeal additionally made consideration to Mr Shuetrim’s relative young age and commented that the possibility of recovery where the injured person is young is well expressed in the saying “never say never…”
This case clarified the interpretation TPD policies and the “unlikely to ever return to work” test, and demonstrates that TPD claims being commercial disputes, differs greatly from compensation claims.
Gerard Malouf and Partners has expertise in conducting successfully total and permanent disablement claims and other claims of private insurance policies. We are aware of the complexities involved and the hurdles insurance companies put up to defeat your claim on technicalities. We are happy to assist and provide advice and please do not hesitate to contact our firm for a free consultation.