The New South Wales Supreme Court has upheld an insurer’s decision to decline a TPD claim because the claimant was capable of working in an alternative occupation.
In the case of Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd and MetLife Insurance Limited, the claimant sued the insurer and super fund after his claim for TPD was declined. The claimant, a motor vehicle mechanic, suffered an injury to his wrist while at work.
The court ruled in favour of the insurer and fund, agreeing with their decision to decline the claim because there were specific areas of work that the claimant was ‘reasonably capable of performing by reason of education, training or experience’.
…the Court was required to consider … the actual likelihood of obtaining regular employment
During the court case, the claimant’s lawyers argued that MetLife and the fund had failed to consider and analyse relevant material, being a number of unsuccessful job applications made by the claimant. The Judge agreed that the applications were relevant to the claims decision, saying that the Court was required to ‘…consider not just the theory that a person is physically fit to carry out particular work that was regarded as suitable, but also the actual likelihood of obtaining regular employment for reward other than casual work, or other work of an intermittent nature’.
“His Honour confirmed that the Court was required to consider not just the theory that a person is physically fit to carry out particular work that was regarded as suitable, but also the actual likelihood of obtaining regular employment for reward other than casual work, or other work of an intermittent nature,” explained Ros Wicks, Senior Associate at TurksLegal.
However, despite agreeing with the claimant that the insurer and fund had failed to adequately assess all the evidence relevant to the claim, the Judge found in favour of the insurer, because the claimant’s condition did not meet the policy definition of TPD.
To view the case in detail, as summarised by TurksLegal, click here to visit our Case Study library.
Without knowing the exact details of the injury, it is plain to see that an injured wrist will definitely not render you totally and permanently disabled as per the definition. I suspect there are many people out there with worse injuries who are still working in some capacity.
This is probably another case of the lawyers fishing around and encouraging people to simply sue even if they think there is a slim possibility of having a win. Well they got it wrong again, shame on them.
I’m on the ‘most people, on most issues, most of the time, should have no opinion’ given we don’t know most of the issues in this case.
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