Australia: Life insurers are not an employment agency

Assessing life insurance claims is a careful balancing act, weighing up the opinions of various medical experts and vocational assessors. Dotlic v Hannover Life Re of Australasia Limited [2017] NSWSC 986 provides some much needed colour to the shades of grey insurers face when considering expert evidence.

The Accident

Mr Dotlic immigrated from Bosnia to Australia in 2000 at the age of 19. He found work as a formwork labourer and became a member of the Construction and Building Unions Superannuation Fund, which was party to a group life policy issued by Hannover Life Re Australasia Limited (Hannover).

In 2009, Mr Dotlic was involved in a motor vehicle accident, suffering only minor head, shoulder and back injuries. He was admitted to hospital and released the same day. The extent of his treatment was physiotherapy and massage on referral from his general practitioner.

In 2012, Mr Dotlic claimed a Total and Permanent Disability (TPD) benefit of $100,000. The claim was assessed and subsequently declined by Hannover in 2014 on the basis that Mr Dotlic was able to return to suitable lighter duties within the scope of his education, training and experience (ETE). Mr Dotlic then commenced proceedings in the New South Wales Supreme Court against both Hannover and United Super Pty Limited (Trustee) as trustee for the Construction and Building Unions Superannuation Fund.

Was the insurer's decision reasonable?

In order to succeed in the proceedings, Mr Dotlic needed to establish that the decision of Hannover and the Trustee to decline his claim was unreasonable based on the evidence then before them (following the cases of McArthur v Mercantile Mutual and Hannover v Sayseng).

In this instance the question was whether, after consideration of medical evidence satisfactory to Hannover, Mr Dotlic was unlikely ever to be able to engage in any Regular Remuneration Work (as defined in the policy) for which he was reasonably fitted by his ETE.

Pembroke J considered the established principles of reasonableness found in Edwards v The Hunter Valley Co-Op Dairy, TAL Life Ltd v Shuetrim and Minister for Immigration & Citizenship v Li, including that the decision of the insurer could not be attacked '[u]nless the view taken by the insurer can be shown to have been unreasonable on the material then before the insurer' and that unreasonableness can be found where a decision 'lacks an evident and intelligible justification'. He also cited the oft-quoted maxim 'reasonable persons may reasonably take different views'.

Counsel for Mr Dotlic submitted that Hannover's decision was so unreasonable that a reasonable person in its position would not have arrived at it. The basis for this submission was that Hannover and the Trustee had not addressed the question of whether, in the real world, the plaintiff was ever likely to obtain such work bearing in mind his injuries, limited English skills and his previous ETE. Further, Mr Dotlic contended that there was no labour market analysis to assess the likelihood of him obtaining any such employment.

In the course of assessing the claim, Hannover and the Trustee relied on voluminous medical and vocational reports that provided an optimistic but realistic prognosis. The vocational assessors were, according to His Honour, scrupulous in addressing the relevant issues and recommending employment categories.

On the other hand, His Honour drew attention to the 'precious little' that was provided to Hannover to support Mr Dotlic's claim (being one report from Mr Dotlic's general practitioner). That report certified that the GP did not believe that Mr Dotlic would ever be able to do a job for which he was reasonably fitted by ETE. The only support for this opinion was 'chronic persisting symptoms resulting from injury on 15/9/2009'. His Honour questioned the veracity of that report, referring to his own reasoning in Zahr v TAL, that '... the usual, and entirely understandable starting premise of a medical practitioner is to accept and believe a patient's account'.

His Honour ultimately found in favour of Hannover and the Trustee, on the basis that:

  • Hannover had more than enough material available to it, and there was an evident and intelligible justification for Hannover's opinion based on that material;
  • a reasonable insurer would not have concluded that Mr Dotlic was unlikely ever to be able to engage in regular part-time or full-time employment for which he was reasonably fitted by ETE; and
  • there was no failure on the part of Hannover or the Trustee to have regard to the 'real world' in considering whether Mr Dotlic was unlikely ever to be able to engage in suitable employment.

No duty to find employment

What is interesting about this case is that His Honour not only considered the reasonableness of the insurer's decision to decline Mr Dotlic's claim, but he went one step further to state that an insurer has no responsibility to act as an employment agency.

In the penultimate paragraph of the judgement, His Honour refers to a Job Match Report obtained by Hannover, stating that 'having identified appropriate vocational opportunities for the plaintiff, and taking into account the physical restrictions to which he was subject, there was no need to go further. And no need for the insurer to question the conclusions.'

Essentially, His Honour confined an insurer's responsibility to forming an opinion about the probabilities of whether or not an insured is unlikely ever to engage in employment that they are suited for based on their ETE; and that an insurer 'has no duty to find a particular job with a particular employer willing to take on the plaintiff'.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions