The recent judgment of Shuetrim v FSS Trustee Corporation1 provides important lessons to life insurers regarding their treatment of expert evidence in deciding whether an insured is TPD.

Mr Shuetrim was a beneficiary of policies of life insurance held by the trustee of his superannuation fund, which covered him if he became TPD. To be classified as TPD under the policies, Mr Shuetrim was required to prove that he was “incapacitated to such an extent as to render him unlikely to ever engage in or work for reward in any occupation or work for which he is reasonably qualified by reason of education, training or experience” at the relevant times of assessment (defined in the policies as being three and six months after the insured ceased his employment).

Mr Shuetrim sustained an elbow injury, and also an anxiety and adjustment disorder, which arose from his employment as a police officer and claimed he was TPD. The insurers denied indemnity on the basis that Mr Shuetrim did not fit the definition of TPD.

However, the Court took issue with the means by which the insurers had reached this decision. One insurer had deemed all medical evidence dated after the time of assessment as irrelevant to its determination, despite the fact that these later reports still shed light on the severity of the insured’s condition at the time of assessment. The other insurer drew a conclusion from a vocational assessment report that further employment options were available to the insured by reason of his education, training or experience, even though the substance of the report did not support this conclusion.

As a result of these issues, the Court determined that the insurers’ consideration of the claim was so unreasonable as to constitute a breach of its obligations of good faith and fair dealing. The question as to whether Mr Shuetrim was TPD was therefore open to be determined by the Court. As the insurers had not provided evidence which properly countered the plaintiff’s assertion that he was unlikely ever to engage in work for which he was reasonably qualified by reason of education, training or experience, the Court found in favour of the insured and determined that he met the definition for TPD.

This judgment provides a good reminder of the pitfalls of “picking and choosing” expert evidence, or drawing conclusions that may not be properly be substantiated by evidence, in the assessment of TPD claims.

The full text of this decision can be found at: https:// www.caselaw.nsw.gov.au/ decision/55397dfde4b0fc828c996486.