TPD: "unlikely ever" – a real chance


TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68

Construction of the TPD clauses

  1. The statement in the headnote of White v The Board of Trustees [1997] 2 Qd R 659 that “‘unlikely’ meant ‘improbable’ in the sense of a less than 50 per cent chance” is erroneous: at [81], [86], [189]-[190].

White v The Board of Trustees [1997] 2 Qd R 659, consideredBeverley v Tyndall Life Insurance Co Ltd [1999] WASCA 198; 21 WAR 327, followed

  1. The phrase “unlikely ever” in the TPD clauses does not mean “less than 50 per cent”. A real chance that a person will return to relevant work, even if it is less than a 50% chance, will preclude an insurer being satisfied that the Insured Person is unlikely ever to return to relevant work. Conversely, the insurer will be satisfied if there is merely a remote or speculative possibility that an Insured Person will return to such work: at [88]-[91], [190].
  2. Consideration of the utility of dictionary definitions: at [80].

Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664, 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488, Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272, R McDougall, “Construction of contracts: The High Court’s approach” (2016) 41 Aust Bar Rev 103, referred toBreach of duty

  1. MetLife did not breach its duty to Mr Shuetrim by failing to give the vocational assessment report, which was highly equivocal, “any, or any proper, weight”: at [100]-[102].
  2. TAL did breach its duty to Mr Shuetrim by failing to have regard to medical and psychiatric opinions expressed after the “relevant time”. These opinions were relevant to TAL’s determination of Mr Shuetrim’s claim: at [147]-[154].

The two-stage approach

  1. TAL should not be permitted to reverse its forensic decision made at trial, in circumstances where that decision significantly affected the course of the trial: at [164]-[167].

Sze Tu v Lowe [2014] NSWCA 462; 89 NSWLR 317, Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631, referred to

  1. Despite being the subject of some judicial criticism, the two-stage approach in Edwards v The Hunter Valley Co-op Dairy Co Ltd has been applied in considered appellate decisions in New South Wales, Queensland and arguably Western Australia, which have consistently been applied in first instance decisions across Australia, and shall not be departed from: at [168]-[188].

Edwards v Aberayron Mutual Ship Insurance Society (1876) 1 QBD 563, Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113, HCF Life Insurance Company Pty Ltd v Kelly [2002] WASCA 264, McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197, Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; 13 ANZ Ins Cas 90-123, Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2015] NSWCA 104; 89 NSWLR 412, considered

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