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Issue 32 - February 2018

Case studies


Case 1
A household member was involved in a motor vehicle accident when driving the insured vehicle. The FSP declined the claim as the driver was not a nominated driver under the policy.

The issue was whether a household member not nominated under a policy should be excluded from cover. The household member had only returned home during the currency of the policy.

Section 54(1) was found to apply as the relevant act was determined as the failure to nominate the person as a nominated driver during the period of insurance. Equally, the act could have been allowing an uninsured driver to drive the vehicle.

As there was no evidence that driver was not an acceptable risk or would not have been insured by the FSP if nominated there was no prejudice to the FSP. FOS found in favour of the applicant.
 

Case 2
The applicant had a blood alcohol level of .05. The FSP declined the claim relying on an exclusion relation to driving under the influence of alcohol.

The only relevant information was that the applicant had a BAC of over .05.

The FSP did not present any evidence to show that the applicant’s blood alcohol level could reasonably be regarded as being capable of causing or contributing to the accident. There was no evidence of the impact of the alcohol.

As the FSP had not established the act could reasonably be regarded as being capable of causing or contributing to the loss, section 54(2) did not apply.
 

Case 3
This case involved a claim under a mortgage protection policy. The applicant became unemployed but was not certified by Centrelink. The FSP declined the claim as the policy required the applicant to be certified unemployed by Centrelink to be eligible to claim.

FOS determined that section 54(2) did not apply as the relevant act (not being certified unemployed by Centrelink) could not reasonably be regarded as being capable of causing or contributing to the loss given:

  • the specific and senior nature of the applicant’s employment
  • the applicant’s demonstrated efforts in looking for and finding new employment.

Section 54(1) applied. As no prejudice was identified the FSP was liable for the claim.
 

Case 4
The applicant held a sickness and accident policy and lodged a claim for total temporary disability (TTD) benefits following surgery.

The policy required the injury to occur during the period of insurance and the TTD to occur within 12 months of the injury. The applicant did not have surgery until 18 months after the occurrence of the injury.

It was determined that the failure to undergo surgery which would have rendered the applicant TTD was an omission for the purposes of section 54, in that it was the non-performance of an act which if done would have disentitled the FSP to refuse the claim.

There was no dispute that if the applicant had had surgery when he initially attended hospital, cover would have been provided. There was no dispute that the omission of surgery was something that the applicant could not reasonably avoid given the hospital waiting list at the time.

The act could not reasonably be regarded as being capable of causing or contributing to the loss. It was an act the applicant could not reasonably avoid.

It was considered there was no prejudice suffered by the FSP.

The determination recognised that the decision may be different if the applicant had not attended the hospital or sought surgery until after the 12 months had elapsed.

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