The claims Guideline is also for disability income insurance. There is guidance about the claims management process, case management, periodic review and claim forms. The purpose of the FSC education and training Standard is to ensure individual representatives or entities authorised by a life insurer to provide information to consumers in respect of the management of an FSC Member’s life insurance products receive an appropriate level of education and training in relation to ‘mental health’ awareness. The Standard also requires the Member to review the effectiveness of the Member’s Mental Health Education Program designed to ensure mental health awareness among such representatives or authorised entities. The FSC Standard requires that the mental health education and training modules must demonstrate learning objectives that: increase general awareness and understanding of the causes, signs and symptoms of common mental health conditions in the community; increase understanding of what it is like to have a mental health concern; and develop communication skills for interacting with consumers who may have mental health concerns. The FSC Standard sets out a non-exhaustive list of training providers and resources for education and training under the Standard. Gender A person’s gender recorded on the birth certificate is determinative of the person’s sex under state legislation. The state legislation specifies an administrative process for transgender persons who have undergone gender reassignment to change the sex recorded on their birth certificate. There is no equivalent commonwealth legislation. However, there is case law to support the conclusion that for commonwealth legislation, such as the IC Act, if a person has: undergone gender reassignment surgery, the person’s sex is the person’s sex (as per the surgery); not undergone gender reassignment surgery, the person’s sex is the person’s biological sex (even if the person has lived and identified as the opposite sex for a number of years). If a person has undergone gender reassignment and discloses to an insurer the person’s non-biological sex, there is no misrepresentation because this is legally the person’s sex. If a person has not undergone gender reassignment surgery and discloses his/her identified sex rather than his/her legal sex, this may still not be misrepresentation if that person held a belief (a belief that they are the identified sex) that a reasonable transgender or intersex person in that position would have held: IC Act, section 26(1).
assessment’ which is usually the expiration of six months. The assessment should take into account only work for which the employee was suited at the expiration of that period. Therefore education, training and experience after the end of the waiting period are not relevant. Labour market test The court must consider whether it is ‘probable that the insured would actually obtain work for reward’. The context here is that the TPD definition is directed to the realities affecting the capacity of the person, not theory, but the context is the life insured's physical capacity in a realistic sense; not, for example, the place where work could or should be carried out. This approach has been misunderstood as importing a ‘labour market test’. The ‘labour market test’ is not properly a part of TPD criteria or assessment. It is not supported by the terms of standard TPD insurance, or principle or authority. It is a question of realistic physical capacity not labour market availability. Extent of incapacity The various definitions of TPD require varying degrees of disablement: ‘the requirement that the incapacity be ‘for’ further employment, carries with it the requirement that the incapacity be permanent or substantially permanent. Mere temporary incapacity would clearly be insufficient.’ In the same way, an incapacity to such an extent as to render the Insured Member ‘wholly prevented’ required evidence of a very substantial disability. Degree of certainty The expression unlikely ever sets a very high standard of probability: ‘permanent state of affairs’, ‘no real chance’ or ‘improbable’. The true construction of unlikely ever is ‘no real chance or even improbable’. The words ‘look well into the future’ and connote a permanent state of affairs so far as can be seen based on the evidence at the time of assessment. A modern and practical rendition of the test would be: ‘very improbable over a working life time’. It follows that time and therefore age can be factors: a life insured was aged 38 and the length of working life available was relevant because a younger person has a better opportunity to return to an ETE occupation. In the modern Australian context, it might be reasonable to treat a lifetime as between age 65 and 80. Partial disablement The distinction between total and partial disablement is between the carrying out of all the normal duties of the insured's usual occupation and the carrying out of the some of the normal duties.
‘Q’ is the number of dollars that is equal to the premium, or to the sum of the premiums, that the insurer would have been likely to have charged if the duty of disclosure had been complied with or the misrepresentation had not been made. Note: This subsection applies differently in relation to a contract with a surrender value, or a contract that provides insurance cover in respect of the death of a life insured (see subsection (10)). In the application of subsection (4) in relation to a contract that provides for periodic payments, the sum insured means each such payment (including any bonuses). If the insurer has not avoided the contract or has not varied the contract under subsection (4), the insurer may, by notice in writing given to the insured, vary the contract in such a way as to place the insurer in the position (subject to subsection (7)) in which the insurer would have been if the duty of disclosure had been complied with or the misrepresentation had not been made. Note: This subsection does not apply in relation to a contract with a surrender value, or a contract that provides insurance cover in respect of the death of a life insured (see subsection (10)). The position of the insurer under a contract (the relevant contract) that is varied under subsection (6) must not be inconsistent with the position in which other reasonable and prudent insurers would have been if: they had entered into similar contracts of life insurance to the relevant contract; and there had been no failure to comply with the duty of disclosure, and no misrepresentation, by the insureds under the similar contracts before they were entered into. For the purposes of subsection (7), a contract of life insurance (the similar contract) is similar to another contract of life insurance (the relevant contract) if: the similar contract provides insurance cover that is the same as, or similar to, the kind of insurance cover provided by the relevant contract; and the similar contract was entered into at, or close to, the time the relevant contract was entered into. Date of effect of variation of contract A variation of a contract under subsection (4) or (6) has effect from the time when the contract was entered into.
within 3 years of it being entered into: old 29(3). Variation of Sum Insured Section 29(4) The three-year time limit does not apply. Applies after 28 June 2014. Variation of Contract Terms No remedy New sections (6)-(8) and (10). Applies after 28 June 2014. Unbundling The IC Act and the common law allowed unbundling The new section 27A merely declares and clarifies the previous position. Applies from 28 June 2013