Background

The increased frequency with which life insurers are sued before reaching a TPD decision has in recent times created a dilemma as to how insurers, who are simultaneously defending proceedings as well as trying to make a decision on TPD, should treat documents they seek under subpoena or other compulsory court process.

That is, can the insurer, as well as using such documentation in its defence of the proceedings, also consider such material in forming its opinion on TPD?

Background

You will recall that we have previously discussed the 2018 NSWSC TPD decision of MX v FSS & MetLife.

In that case, being a split TPD case dealing with stage one only, the NSWSC held that the insurer’s two separate TPD declines failed because:

Background

The TPD claim by the life insured, a former police officer, was brought in relation to both physical and psychiatric injuries. The life insured ceased work in February 2010 and her six months qualification period ended in October of that year. The claim was lodged in June 2011 and a decline decision was issued seven years later, in May 2018 (whilst court proceedings were on foot).

In the meantime, proceedings were commenced firstly in the Industrial Relations Commission in March 2014 but were transferred to the NSWSC by September 2015.

In August 2019, AFCA published decisions (613562 and 619820) which considered the scenario of whether underwritten cover initially entered into by the earlier group insurer but now sitting with a later insurer, could be subject to a s29 of an ICA avoidance or variation, by the later insurer.

Facts

Piatti v ACN 000 246 542 Pty Ltd & Anor (No. 2) [2019] NSWDDT 8 (6 September 2019)

Summary

This case considers the instances in which an indemnity cost order can be challenged pursuant to Clause 90 of the Dust Diseases Tribunal Regulation.

Background

Workers Compensation Nominal Insurer v Allmen Engineering Projects Pty Ltd [2019] NSWSC 1582 (15 November 2019)

Summary

Naylor v A Noble & Son Limited [2019] NSWWCCMA 144 (11 October 2019)

Summary

The respondent worker injured both of his knees while undertaking employment with the appellant, which resulted in a number of surgical procedures.

Legislative Developments

There are no legislative developments to report this month.

Recent Decisions

To assume or not to assume – WCC says do neither
Naylor v A Noble & Son Limited [2019] NSWWCCMA 144 (11 October 2019)

Summary

Solicitors and conveyancers for vendors and developers need to be aware of the additional vendor disclosure obligations in force since 1 December 2019.

The changes have come into effect following the commencement of the Conveyancing Legislation Amendment Act 2018 (‘the Act’) and the Conveyancing (Sale of Land) Amendment Regulation 2019 (‘the Regulations’).