UCPR: rr162 & 171 – sufficiency of particulars in TPD claim

Robinson & Anor v Westpac Life Insurance Services Limited [2017] QDC 40

Smith DCJA

The plaintiffs claimed the defendant had breached a contract of insurance by failing to pay out on a TPD claim. By September 2015 the defendant had refused to pay out the claim three times. The defendant requested particulars, which when provided by the plaintiff, formed the basis of the defendant’s application to strike out parts of the plaintiffs’ pleadings pursuant to rules 162 and 171 of the Uniform Civil Procedure Rules 1999 (Qld).

The plaintiffs applied for the certificate of readiness for trial to be dispensed with and for the defendant application to be dismissed. The plaintiffs submitted the defendant was in effect attempting to obtain summary judgment.

In determining the strikeout application his Honour had regard to the authorities of Platinum United II Pty Ltd & Anor v Secured Mortgage Management Limited (in liq) and Coco v Ord Minnett Ltd.

Date of assessment and particulars

Finding that the appropriate date of assessment fell on the date on which formation of the opinion occurred, his Honour referred to McArthur v Mercatile Mutual Life Insurance Company Limited. In that case, the respondent’s opinion letter as to the appellant’s incapacity was invalid because the respondent breached the obligation to act reasonably, fairly and in good faith due to the application of an erroneous test. In that case Muir J held:

[58] … the insurer having been in breach of a contractual obligation, an orthodox contractual analysis would suggest that the appellant’s remedy was to sue for damages for breach of contract

[60] If the contract had been performed in this case, the respondent would have formed the subject opinion honestly, bona fide and reasonably

[72] … [where] payment is dependent on the formation by a party to a contract of an opinion as to the existence of a state of affairs and the opinion is not duly formed through the fault of that party, the Court may proceed to decide, as a question of fact, whether such state of affairs exists

Accordingly, his Honour found:

[47] In this case there is no definition clause like that in Birdsall’s case so the matter becomes one of construction of the insurance contract.  In my view, absent any pleading of a breach of an implied term, the opinion date is either, 2 February 2006 (the end date of the six consecutive month period); or 20 January 2012 (the refusal by the insurer when the benefits were first applied for).

[49] In the circumstances, I strike out paragraphs 5.3, 5.4 and 5.5 of the further and better particulars of the further amended statement of claim of the plaintiffs filed 28 July 2016, but give leave to re-plead within 28 days.

As to the particulars of the virus which the first plaintiff had contracted, his Honour found that the response “some kind of febrile illness” was sufficient. His Honour referred to Schuhmacher & Ors ATO The Schuhmacher Superannuation Fund v Zurich Australia Limited where Durward SC DCJ stated:

[24] However a party can only be required to give those particulars that the party is able to provide; that much is axiomatic.  When a party exhausts its knowledge of what it says are the facts, then that is sufficient, it can do no more.

His Honour allowed 28 days for the plaintiffs to re-plead but otherwise dismissed the plaintiffs’ application.

David Cormack – Brisbane Barrister & Mediator

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