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On 8 September 2022 the Court of Appeal handed down a unanimous decision regarding Limitations in Insurance Contacts: Ali v Insurance Australia Limited [2022] NSWCA 174. This case particularly considered a previous case on Limitations: Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27.
Under the Limitations Act 1969 (NSW), matters generally have a limitation period of 6-years (at s14), and insurance contract matters mostly fall under that general 6-year period.
In the Globe Church there was a question as to when limitation would accrue. That case involved an insurance contract for property damage and the question there was whether limitations accrued from when the damage occurred (that would have been outside 6-years) or when the insurer declined to pay (within 6-years).
By a narrow margin of 3:2 the majority of Bathurst CJ, Beazley P, and Ward JA (as they each then were) decided that limitations accrued from when the damage occurred (from the event) and NOT from when the insurer ostensibly breached by declining to pay. Meagher and Leeming JJA dissented.
In Ali, Mr. Ali was insured under home and contents insurance, and he had suffered a break-in on 9 October 2013, and he made a claim on his home and contents insurance which was denied on 20 May 2014. Proceedings were commenced 16 October 2019 and the insurer argued the limitations accrued from 9 October 2013 and accordingly the matter would be statute barred. The primary judge agreed with the insurer.
The Court – Ward P, Leeming and Mitchelmore JJA (two of these three judges were in Globe Church) – unanimously determined that the terms of this insurance policy was sufficiently different from those considered in Globe Church, and they proceeded to have:
The distinction that the Court noted was:
This Appellate decision would seem to answer the question of when limitations would accrue in an insurance matter, and that it would be dependent on the exact wording of the insurance policy.
For TPD insurance matters, many of them have terms to the effect of “in the opinion of the insurer” which would seem to be more in-line with the wording used in Ali, and thus limitations are likely accrue at the decline of the claim.
Should require advice regarding your TPD insurance claim please speak to one of our expert solicitors at Gerard Malouf & Partners Compensation Lawyers on 1800 004 878 for a free, no obligation consultation.
You can purchase TPD insurance as a standalone product from insurers, although there’s a chance you may already be receiving total or partial coverage under other policies.
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