Westpac denies claim because of past medical history: then claims fraud

Thereze Guirgis was a 43 year old pharmacist and married with two children in 2007 when she applied to Westpac for a policy of insurance.

As part of the process she was required to fill out a lengthy form called a ‘personal statement’.  As is common with such insurance applications the form contained a series of questions regarding the applicant’s past medical history.  Ms Guirgis competed the form and Westpac issued a policy of insurance.

The policy provided for the payment of a monthly total disability benefit in the event that Ms Guirgis suffered total disability within the meaning of the policy.  It also provided for the payment of a monthly partial disability benefit.

 In October 2011, Ms Guirgis made a claim on the policy.  In her claim form, she claimed that she had reduced her working hours because she was suffering from fibromyalgia.  She also claimed that arm and shoulder pain prevented her from working.  In April 2012 Ms Guirgis maintained that things had progressed to a point where she also suffered depressed mood and was then totally disabled.

Westpac made payments on the claim until June 2012.  At that point it ceased payments and alleged that Ms Guirgis had failed to comply with her duty of disclosure, that she had made misrepresentations in her personal statement and that she had been fraudulent in doing so.  They alleged that that resulted in the entire policy being invalid.

Ms Guirgis commenced legal proceedings to recover her payments from Westpac.

One of the questions in the personal statement asked whether Ms Guirgis had suffered from disorders including fybromyalgia.  Ms Guirgis answered ‘no’.   Medical records revealed a prior mention of fibromyalgia and extensive medical consultations about various disorders.

Ms Guirgis denied ever being told she had fibromyalgia prior to her application to Westpac.  Her treating GP agreed with that.  Although it had been mentioned in a letter to him from a rheumatologist he did not agree with the diagnosis and had not discussed it with Ms Guirgis.  She had noted she had seen a rheumatologist in her personal statement.

Westpac argued that had they known of the fibromyalgia they would not have insured Ms Guigis.  They said it was not with their normal procedures or guidelines to do so for such a debilitating condition.

The matter came before the Supreme Court and the later the Court of Appeal.

The court concluded that Ms Guirdis was unaware of the fybromyalgia condition at the time she applied for her insurance.  It found that the non-disclosure was not fraudulent.  They also rejected the argument advanced by Westpac, that it would not have insured Ms Guirdis:  it was noted that while Westpac had led evidence fro ma witness about that issue, no written copy of the alleged guidelines was ever produced at trial.  They also noted that had the condition nee so serious (as Westpac contended) that it warranted a policy of excluding cover the it would be expected that the condition would have been one which would have been specifically mentioned in the forms set to to treating doctors (in the same way others serious conditions such as cancer, heart conditions and so on were mentioned).

Ultimately, Ms Guirdis succeeded: she was entitled to be paid her benefits under the Westpac policy of insurance.

If this article could be relevant to your situation please contact us.  We’d be more than happy to help guide you through your possible options.

For more details read the full version of the court judgment:

Westpac Life v Guirgis [2015] VSCA 239

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