Derham v Chamber Trustee Services Pty Ltd and Anor [2017] VCC 1174

Plaintiff seeking insurance payment after alleging she had an epileptic condition which made it “unlikely ever” that she could work a job she was trained and qualified to do.

The plaintiff, Ms Derham, was a member of a superannuation fund. The fund was looked after by the first defendant, which is a company.

The second defendant is an insurance company. People or companies will sometimes purchase insurance policies: if something happens to them that the policy covers, they get paid by the company managing the policy. Sometimes that company managing the policy is the insurer itself, and sometimes it is a middle company, but the insurance company still makes the payment.

The superannuation fund had a policy that said the plaintiff would be paid a total and permanent disability insurance payment if she could show she was injured or ill, had been away from work for three months, and was “unlikely ever” to engage in work that she was trained or qualified to do.

The plaintiff sued the first defendant for that payment. The company actually making the payment is the insurance company, the second defendant.

The plaintiff showed she had an epileptic condition and that she had been off work for three months. The Judge had to decide whether the condition meant that she was “unlikely ever” to engage in work that she was trained or qualified to do.

Issues of evidence

This case raises issues of evidence, including whether a witness’s or expert’s evidence is reliable, how a Judge decides that, and what happens where evidence is not called.

The evidence the Judge considered included the plaintiff’s employment history, her lifestyle, medical evidence about symptoms and treatment, and medico-legal evidence (medical assessments performed for the purposes of the case), from the plaintiff and from medical practitioners.

The Judge then explained the defendants’ case. That case focused on cross-examination to demonstrate that various statements made by the plaintiff about the impact epilepsy had on her were not accurate. These included statements about her ability to drive and whether or not she had stopped attending social activities (her Facebook page was used as evidence on this topic).

The defendants said what the plaintiff had told her medical practitioners was not truthful, so the medical practitioners’ opinions could not be accurate either. For these reasons, the defendants said the evidence did not show the plaintiff was “unlikely ever” to engage in work she was trained or qualified to do.

The Judge said the evidence was sufficient for him to conclude the plaintiff was “unlikely ever” to engage in work she was trained or qualified to do. The discrepancies (differences) in the evidence could be explained and did not indicate the plaintiff was being untruthful, or that the opinions or conclusions of the medical practitioners were incorrect.

The Judge said the plaintiff was entitled to be paid under the fund’s insurance policy.

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Page last updated: 16 September 2018