Wheeler v FSS Trustee Corporation as trustee for the First State Superannuation Scheme [2016] NSWSC 534

Published 08 Nov 2016

In the recent decision of Wheeler v FSS Trustee Corporation as trustee for the First State Superannuation Scheme [2016] NSWSC 534 the Supreme Court considered the Total and Permanent Disablement (TPD) insurance claim of a former NSW Police Officer.

The Plaintiff ceased work as a Police Officer in 2010 after she developed post-traumatic stress disorder and major depression after witnessing a series of horrific events in the course of her duties.

Shortly after her medical discharge in 2012 the Plaintiff lodged a TPD claim under two insurance policies that she held through her superannuation fund First State Super. The two policies were a standard basic TPD cover and a Police Blue Ribbon cover which is only available to police officers.

The Plaintiff had to show that she satisfied the policy definition of ‘unlikely ever to engage in or work for reward in any occupation or work for which he or she is reasonably qualified by reason of education, training or experience.’

The Plaintiff’s mental illness was severe and her treating doctors and experts agreed that she would not be able to return to being a police officer or any other job for which she was reasonably qualified.

By June 2014, over two years since the claim was lodged, the insurer had not made a decision on the Plaintiff’s claim. Based on this unreasonable delay the Plaintiff commenced proceedings in the Supreme Court, arguing that the insurer’s failure to make a determination amounted to ‘constructive denial’ of her claim.

At hearing, the Supreme Court had to consider various legal issues in deciding the case, including whether there was a breach by the insurer of its duty of good faith and fair dealing to the Plaintiff. The Court found that there was such a breach and that it was sufficiently serious that the constructive denial argument could succeed. Having made that determination the Court then turned to whether the Plaintiff did indeed satisfy the policy definition of TPD.

The Court considered all the evidence supplied by the Plaintiff and the insurer including medical reports, vocational reports, the Plaintiff’s testimony and investigation reports including surveillance footage. The latter revealed that the Plaintiff had been playing netball, doing the shopping and engaging in other normal day to day activities.

The insurer argued that this was evidence that the Plaintiff could return to work, however the Court found that ‘evidence of sufferers [of mental illness] engaging in normal pursuits does not necessarily correlate with capacity to engage in employment.’

The Court ultimately found that the Plaintiff satisfied the insurance policy’s definition and was entitled to be paid her TPD benefits. The Court also ordered that the insurer pay the Plaintiff’s legal costs.

At Gerard Malouf and Partners our expert TPD lawyers can assist lodging an initial claim and fighting a rejection at Court. If you would like to find out more about your rights and options call us today for a free consultation to discuss how we can help you obtain the benefits you deserve on a No Win No Fee basis.

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