find case judgment in the supreme court in victoria australia(or if
none in vic. in any other state of australia)against national mutual
insurance(axa aust.)for breach of contract of personal income
protecton,trauma,inury sickness,total disability

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Request for Question Clarification by colin-ga on 14 Jul 2002 06:26 PDT

Dear wal-ga:

I can find many cases involving the National Mutual Insurance Co. in
Australia.
Do you want to see a case where the petitioner prevailed over the
insurance company in all (breach of contract,personal income
protecton,trauma,injury ,sickness,total disability) in one case or
seperate judgements?

Thank you,

Colin

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Clarification of Question by wal-ga on 14 Jul 2002 17:43 PDT

Dear colin-ga,
In one case, or seperate judgments, would be ok.I am suing national
mutual and need as much information I can. Specificlly information on
national mutual avoiding a persons policy for alleged medical
non-discloser.
Thank you
Wal-ga

Dear wal,

Thus far I have found two cases involving National Mutual:
_____

Catchwords:Civil Claims List - Private health insurance - entitlement
to benefits - pre-existing disease or illness - signs or symptoms of
disease or illness.

“Notwithstanding …, there was no evidence before the Tribunal that at
the time relevant to the determination of this application the
deceased displayed any of what might be regarded, on the evidence of
Dr Molloy and the reports of Mr Denton, as the classic or normal
manifestations of the condition…I find that, for the reasons stated
and on the basis of the findings of fact set out above, the deceased
was entitled to be paid the benefits he claimed.”

http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/vic/VCAT/2000/1287.html?query=title+%28+national+mutual+%29
_____

Two weeks after being made redundant the defendant suffered a stroke…
The judgement was to pay the amount due under the policy plus
interest.

http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/supreme%5fct/96050094.html?query=title+%28+national+mutual+%29
____

Search strategy:
Go to the search form for Australian Legal Information Institute
(Austlii) and enter Boolean search title(National Mutual) then read!
http://www.austlii.edu.au/forms/search1.html

The search thus far has not been exhaustive, I will continue to search
and offer them as a clarification to the answer later today.

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Clarification of Answer by ozguru-ga on 17 Jul 2002 06:49 PDT

The clarification took a little longer than expected due to the number
of judgements I reviewed. Although these do not include National
Mutual I thought they may be relevant as they involved non-disclosure
and/or pre-existing conditions:

Search terms entered into AusLii: ( title(insurance) and
non-disclosure and condition )
Interesting non-disclosure matter involving a broker
“…Accordingly, even apart from clause 9, the applicant would be
entitled to succeed upon her claim under the policy of insurance….”


http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%5fct/unrep4235.html?query=title+%28+insurance+%29+and+non+%2ddisclosure+and+condition
_____
Search terms entered into AusLii: ( title(insurance) and pre-existing
)

INSURANCE CONTRACTS ACT 1984 - SECT 47 
Pre-existing sickness or disability 
(1)
This section applies where a claim under a contract of insurance is
made in respect of a loss that occurred as a result, in whole or in
part, of a sickness or disability to which a person was subject or had
at any time been subject.

(2)
Where, at the time when the contract was entered into, the insured was
not aware of, and a reasonable person in the circumstances could not
be expected to have been aware of, the sickness or disability, the
insurer may not rely on a provision included in the contract that has
the effect of limiting or excluding the insurer's liability under the
contract by reference to a sickness or disability to which the insured
was subject at a time before the contract was entered into.
http://www.austlii.edu.au/cgi-bin/disp.pl/au/legis/cth/consol%5fact/ica1984220/s47.html?query=%28+title+%28+insurance+%29+and+pre+%2dexisting+%29
_____
( pre-existing and non-disclosure not marine not fire )
This case deals with the onus of proof of a pre-existing condition.
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%5fct/2001/1599.html?query=pre+%2dexisting+and+non+%2ddisclosure+not+marine+not+fire
_____
Failed allegation of fraud, but involving an insurance agent:
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/qld/QSC/2000/264.html?query=pre+%2dexisting+and+non+%2ddisclosure+not+marine+not+fire
_____
Discusses at length, the concept the one cannot disclose what one
doesn’t know:
“…He possessed no knowledge that it was incumbent on him to disclose,
because he knew of nothing which a reasonable man would deem material
or of a character to influence the
insurers in their action.  It was what he did not know which would
have been of that character, but he cannot be held liable for
non-disclosure in respect of facts which he did not know…”
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%5fct/unrep1223.html?query=pre+%2dexisting+and+non+%2ddisclosure+not+marine+not+fire
_____
This case is an example of disclosure to the extent of the applicant’s
knowledge:
 
        “In the case of the present applicant we consider that he made
adequate disclosure having regard to the state of his own knowledge.
He made it clear that he had been under medical treatment and he
revealed that he had been prescribed concordin, the nature of which
was known to the examiner. He had never been told that he had a
nervous condition, and Dr Delaine drew his
own conclusion that in 1975 the applicant was subject, inter alia, to
'nervous tension' or 'depression and neurasthenia'. This being so we
do not think that any further disclosure was required of the applicant
nor did he, so far as anything was known to him, have anything further
to disclose.”
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/aat/unrep439.html?query=pre+%2dexisting+and+non+%2ddisclosure+not+marine+not+fire

_____
Lesser relevance:
Pre-existing condition is tinnitus:
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/qld/QSC/1998/122.html?query=pre+%2dexisting+and+non+%2ddisclosure+not+marine+not+fire
_____
Pre-existing conditions used to reduce damages
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/supreme%5fct/1999/538.html?query=title+%28+insurance+%29+and+pre+%2dexisting

Difficulty in determining the relative” incapacity relating to injury
in the primary sense, as opposed to the non compensable aggravation of
the pre-existing condition”
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/aat/1999/343.html?query=pre+%2dexisting+and+non+%2ddisclosure+not+marine+not+fire
_____
For your information, I include the unsuccessful searches at:
Scaleplus (pre-2000) :
http://scaleplus.law.gov.au/html/vicdec/browse/TOC.htm
Victorian county courts:
http://countycourt.vic.gov.au/cgi-bin/jccice-for.pl
_____
The search strategy followed was to use a wider search than National
Mutual, but to scan all the returned case descriptions for the
possibly relevant concepts.
_____

Regards,

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Request for Answer Clarification by wal-ga on 18 Jul 2002 02:39 PDT

Dear ozguru-ga,I rated the answer before I read YOUR answer, WOW did
you do a FANTASTIC JOB? YES!!A research that obviously took alot of
time in a very short time. Again I say, Fantastic ANSWER. Thank you! I
give you FIVE STAR!
wal-ga

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Clarification of Answer by ozguru-ga on 21 Jul 2002 21:02 PDT

Dear wal,

Thank you for your kind comments. I wish you success with your case.

Regards,

I had already researched the two case judgments you have forwarded to
me.There is Giles V national Mutual 1986(W.A) and few more, also.
Thanking you for your time and prompt attention ozguru-ga and clin-ga
wal-ga