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Cite as: December 2015 89 (12) LIJ, p.58

Duty of disclosure and misrepresentation under policy of life insurance
Westpac Life Insurance Services Limited v Guirgis [2015] VSCA 239 (unreported, 9 September 2015, S APCI 2015 0014, Hansen, Beach and Kaye JJA).

This application for leave to appeal by the applicant insurer from a decision of a judge of the County Court in favour of the respondent insured concerned the alleged failure by the respondent to disclose a condition known as fibromyalgia when she took out a policy of life and disability insurance, alternatively misrepresentation by her as to whether she had been diagnosed with that condition at the time of inception of the policy and whether the non-disclosure/misrepresentation was fraudulent for the purposes of s29 of the Insurance Contracts Act 1984 (Cth). Fibromyalgia is a condition characterised by widespread musculoskeletal pain.

Before the policy was taken out the respondent had consulted two doctors who, on the finding of the trial judge, had had discussions with the respondent about fibromyalgia. However, the trial judge had held (and the Court of Appeal agreed with him) that the fact the condition had been mentioned did not justify a conclusion that the respondent was aware of the fibromyalgia diagnosis when the policy was taken out. It could not be said that she had acted fraudulently. In that regard, the trial judge had had the advantage of seeing the respondent during cross-examination in relation to all of her medical history. The Court of Appeal was satisfied that the trial judge had correctly applied the standard of proof required in relation to fraud in a civil case, namely, that set out by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336, a standard between the civil standard of balance of probabilities and the criminal standard of beyond reasonable doubt.

Moreover, while the applicant through its underwriter, Mr Janjis, had led evidence that had there been disclosure, the policy would not have been issued, and no written underwriting guidelines had been produced. The failure by the applicant to produce the guidelines was fatal to its argument that it would not have accepted the risk.

[The case illustrates the importance for those acting for insurers to access underwriting and claims guidelines and for those acting for an insured to ensure these are disclosed on discovery where underwriting of claims practice is in issue.]

Leave to appeal was refused.

Professor Greg Reinhardt is executive director of the Australasian Institute of Judicial Administration and a member of the Faculty of Law at Monash University, ph 9600 1311, email Gregory.Reinhardt@monash.edu. The full version of this judgment can be found at www.austlii.edu.au.

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