Davis v Westpac Life Insurance Services Ltd [2007] NSWCA 175

Davis v Westpac Life Insurance Services Ltd [2007] NSWCA 175

Section 29(3) permits an insurer to avoid a contract of life insurance if, after compliance with the duty of disclosure and upon any further investigation that would have ensued, the insurer would not have been prepared to enter into a contract of life insurance on any terms. There is no requirement that this notional decision must have been made as at the precise time of entering into the contract; the relevant inquiry is whether, in the end, the insurer would have declined the risk. The evidence established that had the appellant disclosed his sleep apnoea, the insurer would have made further inquiries, and, upon learning the extent of the condition, would ultimately have refused cover...

Jurisdiction
Australia
Judgment Date
24 July 2007
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
['life Insurance' 'non Disclosure' 'duty of Disclosure' 'avoidance of Contract' 'statutory Interpretation']
['insurance Law'] ['life Insurance' 'non Disclosure' 'duty of Disclosure' 'avoidance of Contract' 'statutory Interpretation']

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the insurer is entitled to avoid a contract of life insurance for non-disclosure of a medical condition under s 29(3) of the Insurance Contracts Act 1984 (Cth)' 'Whether the relevant time for the insurer to prove it would not have entered a contract on any terms is as at the date of the contract or can include subsequent events']

Ratio Decidendi

Section 29(3) permits an insurer to avoid a contract of life insurance if, after compliance with the duty of disclosure and upon any further investigation that would have ensued, the insurer would not have been prepared to enter into a contract of life insurance on any terms. There is no requirement that this notional decision must have been made as at the precise time of entering into the contract; the relevant inquiry is whether, in the end, the insurer would have declined the risk. The evidence established that had the appellant disclosed his sleep apnoea, the insurer would have made further inquiries, and, upon learning the extent of the condition, would ultimately have refused cover...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']