Scott Chapman, a member of the Construction and Building Unions Superannuation Fund (Cbus), brought a claim for Total and Permanent Disablement (TPD) benefit against the Trustee, United Super Pty Ltd, and the Insurer, Hannover Life Re of Australasia Ltd.
William Roberts Lawyers successfully defended the Trustee and Insurer and obtained a costs order on an indemnity basis.
The Court held that Mr. Chapman had not discharged his burden of proof of establishing that he was “unlikely ever to be able to work in any occupation for which he was reasonably fitted by education, training or experience”.
This is the first case to follow Hannover Life Re of Australasia v Dargan [2013] NSWCA 57. In Dargan, the Court of Appeal held at [54] that “there does not seem to be anything unreasonable in construing the contract as providing that a person who is capable of undertaking regular part-time work is not totally and permanently disabled”.
In this case, the Court noted that a short qualifying course of training or retraining would not be a bar to the finding that work is within Mr. Chapman’s education, training or experience, including some retraining to be a taxi driver. It was reasonable for the Trustee and Insurer to come to the view that Mr. Chapman was not totally and permanently disabled.
The Court examined the duties of the Trustee and the authorities including Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238. Alcoa was distinguished in this case on the basis that the Trustee and Insurer “had a bulk of medical opinions and it is hard to imagine how any further reports could have assisted”. The Court held that the conduct of the Trustee in assessing and dealing with the claim was not such as to make it appropriate for the Court to interfere with the Trustee’s decision to refuse the claim.
The Court noted that the duties owed by the Insurer are different from those owed by the Trustee, however, the duties of the Insurer could not exceed those of the Trustee.
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