De Smeth v NSW Fire Brigades Superannuation Pty Ltd [2013] NSWSC 19

Procedural Posture

Insurance Claim for Interest on Accepted and Paid Total and Permanent Incapacity Benefit / Principal Judgment

Legal Issues

1. 1 ['Whether the plaintiff was entitled to interest on the lump sum total and permanent incapacity benefit paid on 6 September 2011.' 'From what date it was unreasonable for the insurer to have withheld payment under Insurance Contracts Act 1984 (Cth), s 57.' 'Whether acceptance of liability meant the trustee accepted that the plaintiff was totally and permanently incapacitated on the date of his accident, 21 February 2009.' 'Whether the trust deed and policy limited total and permanent incapacity benefits to incapacity arising immediately upon injury.']

Ratio Decidendi

It was not unreasonable for Suncorp and the trustee to withhold payment while the plaintiff's injuries had not stabilised and further medical evidence was reasonably required. The trust deed and policy were not confined to incapacity arising immediately on injury, and the trustee's acceptance of liability did not amount to acceptance that the plaintiff was totally and permanently incapacitated on 21 February 2009. Once Suncorp received Dr Nott's 30 June 2011 report on 7 July 2011 stating for the first time that the injuries had stabilised and no significant improvement was expected, Suncorp and the trustee had a reasonable time to consider it; they acted with dispatch in admitting the...

Court Disposition

The claim for interest from 15 December 2009 was rejected; interest is to run from 18 July 2011 until payment on 6 September 2011.

Orders

• ['The Court will hear the parties on the calculation of interest.' 'The Court will hear the parties on costs.' 'The parties are directed to bring in short minutes of order reflecting the reasons.']