Shuetrim "Unlikely Ever"

The meaning of the term ‘unlikely ever’ was clarified in a recent decision handed down by the New South Wales Court of Appeal in Tal Life Ltd v Shuetrim; Metlife Insurance Ltd v Shuetrim [2016] NSWCA .

Previously it was held in 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. In Beverley v Tyndall Life Insurance Co Ltd [1999] WASCA 198, Justice Ipp J adopted the determination in White v Board of Trustees, that ‘unlikely’ means ‘no real chance or even improbable’. Subsequently the NSW Supreme Court in Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 applied White v The Board of Trustees, and determined that unlikely meant a probability of less than 50 per cent.

In Shuetrim, the plaintiff was a former police officer who suffered an elbow injury and associated anxiety and complications which he alleged entitled him to TPD benefits under group life insurance policies issued by TAL and MetLife. Evidence in the proceedings included a number of photographs posted to Facebook which depicted the plaintiff on a driving holiday, having dinner at a restaurant and with his wife and children at the King Street Wharf in Sydney. There were also Facebook posts referring to the member having attended the ‘Wet n’ Wild’ amusement park. Following cross examination by MetLife’s counsel on the Facebook evidence, the trial judge concluded that the plaintiff had exaggerated the likely effect of his disabilities on his everyday life, however, was not prepared to reject the plaintiff’s evidence on the critical question as to work capacity. Accordingly, the trial judge found in favour of the plaintiff.

On appeal, one of the principal issues was whether the trial judge erred in construing the total and permanent disability (TPD) definition – “unlikely ever to engage in or work for reward.”

The Court of Appeal recognised that ‘unlikely’ had been held to denote different meanings in different contexts. TAL’s submission was that in “most cases an attempt to express a likelihood in percentage terms will have merely the illusion of mathematical precision“. This submission was accepted and the Court of Appeal (Beazley P, Leeming JA and Emmett AJA) held that the phrase ‘unlikely ever’ does not denote a ‘less than 50 per cent chance.’ It was held [at 89] that “A real chance that a person will return to relevant work, even if it is less than 50%, will preclude an Insured Person being unlikely ever to return to relevant work.” The critical distinction was held to be “between possibilities which are readily contemplatable even though they may not be more probable than not, and possibilities which are remote and speculative.”

‘Unlikely ever’ is, in this context, much stronger than ‘less than 50%’. If there is merely a remote or speculative possibility that an Insured Person will at some time in the future return to relevant work, a life insurer will not, acting reasonably, be able to conclude that the Insured Person is not TPD. Accordingly, a mere expression of hope that a person will return to relevant work is insufficient to determine that the TPD clause is not satisfied. There needs to be clinical evidence of a real chance of returning to work to sustain a decision that the TPD clause is not satisfied.

The Court of Appeal in Shuetrim also noted that young people with an uncertain medical or psychological prognosis will find it more difficult to prove that they are unlikely ever to return to suitable work.

Written by Jason Stevens, Partner and Marion Carthew, Graduate-at-Law.