Banovic v United Super Pty Ltd [2014] NSWSC 1470

Banovic v United Super Pty Ltd [2014] NSWSC 1470

The Trustee and Insurer failed to apply the correct TPD test and failed to undertake a balanced, realistic and properly informed assessment of the plaintiff's capacity for regular remunerative work by reference to his actual education, training and experience, age, limited English, absence of relevant qualifications, pre-injury heavy manual work history, continuing upper limb, shoulder and neck symptoms, and the practical availability of work. No reasonable trustee or insurer applying the correct test to the available material could have concluded that the plaintiff was not totally and permanently disabled. The Court therefore held the decisions invalid, determined the entitlement itself,...

Jurisdiction
Australia
Judgment Date
27 October 2014
Procedural Posture
Claim for a Total and Permanent Disablement Benefit Under a Superannuation Trust Deed and Group Life Insurance Policy / Principal Judgment After Hearing; Parties Directed to Bring in Short Minutes of Order
Outcome
The Court found each decision of the Trustee and Insurer unreasonable and invalid, found that the plaintiff satisfied the TPD definition, and proposed orders requiring payment of the TPD benefit and pre-judgment interest, with parties to bring in short minutes of order.
Legal Topics
['total and Permanent Disablement Benefit' 'superannuation Trustee Duties' 'insurer Duties of Good Faith and Fair Dealing' 'review of Trustee and Insurer Decisions' 'regular Remunerative Work' 'education, Training or Experience' 'pre Judgment Interest']
['superannuation' 'insurance' 'trusts' 'civil Procedure'] ['total and Permanent Disablement Benefit' 'superannuation Trustee Duties' 'insurer Duties of Good Faith and Fair Dealing' 'review of Trustee and Insurer Decisions' 'regular Remunerative Work' 'education, Training or Experience' 'pre Judgment Interest']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Claim for a Total and Permanent Disablement Benefit Under a Superannuation Trust Deed and Group Life Insurance Policy / Principal Judgment After Hearing; Parties Directed to Bring in Short Minutes of Order

Legal Issues

  1. 1 ['Whether the plaintiff was totally and permanently disabled within the meaning of the trust deed and insurance policy' 'Whether the plaintiff was unlikely ever to be able to engage in any regular remuneration work for which he was reasonably fitted by education, training or experience' "Whether the Trustee and Insurer acted unreasonably in declining the plaintiff's claim" "Whether the Court should determine the plaintiff's entitlement after finding the Trustee's and Insurer's decisions invalid" 'Whether pre-judgment interest should be awarded']

Ratio Decidendi

The Trustee and Insurer failed to apply the correct TPD test and failed to undertake a balanced, realistic and properly informed assessment of the plaintiff's capacity for regular remunerative work by reference to his actual education, training and experience, age, limited English, absence of relevant qualifications, pre-injury heavy manual work history, continuing upper limb, shoulder and neck symptoms, and the practical availability of work. No reasonable trustee or insurer applying the correct test to the available material could have concluded that the plaintiff was not totally and permanently disabled. The Court therefore held the decisions invalid, determined the entitlement itself,...

Court Disposition

The Court found each decision of the Trustee and Insurer unreasonable and invalid, found that the plaintiff satisfied the TPD definition, and proposed orders requiring payment of the TPD benefit and pre-judgment interest, with parties to bring in short minutes of order.

Orders

  • ['An order that the defendants pay the plaintiff the amount of $100,000.' 'Subject to paragraph [272], an order that the Trustee pay the plaintiff pre-judgment interest in the amount of $27,254.79.' 'The parties are to advise the Associate within 7 days if there is any further listing required to hear submissions on...