The insurer has no direct contractual or fiduciary relationship with the member. In the same case, McLelland J held that the insurer owes a duty of good faith and fair dealing which requires it to have due regard for the interests of the member. The law is unclear on whether the same requirements of procedural fairness apply to both trustees and insurers. Most of the cases have been determined in claims against trustees. It is submitted that the principles relating to the trustee's duty of good faith to the member are effectively the same as those relating to the insurer's duty of good faith and fair dealing.
Insurers have an additional obligation to act fairly and reasonably.
It is therefore important for both the member and the trustee to allow sufficient time for the member's medical condition to stabilise, so that doctors can express an opinion on whether the disablement is in fact permanent. There was no evidence before the insurer that the member was qualified to perform such work. The trustee need not be able to show that there is a particular job available to the member. In White , the court also stressed the importance of ensuring that all doctors are given the definition of TPD and asked to express their opinions specifically by reference to it. Alternatively, the trustee can always ask the doctor to clarify the opinion by way of a supplementary report.