White v Zurich Australia Limited [2002] VSC 141 (2 May 2002)

Last Updated: 7 May 2002

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5811 of 2001

MARGARET WHITE	Plaintiff
v.
ZURICH AUSTRALIA LIMITED	Defendant

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JUDGE:	BEACH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 APRIL 2002
DATE OF JUDGMENT:	2 MAY 2002
CASE MAY BE CITED AS:	WHITE v. ZURICH AUSTRALIA LIMITED
MEDIUM NEUTRAL CITATION:	[2002] VSC 141

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CATCHWORDS: Insurance - Claim under life policy - Presumption of death - Evidence - No presumption as to date of death - Inference as to date of death.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. M. Wise	Home Wilkinson & Lowry
For the Defendant	Mr. G. Holley	Holley Nethercote

HIS HONOUR:

1. This is an appeal from the order of Master Wheeler made on 27 March 2002 whereby the Master ordered that the defendant pay to the plaintiff the sum of $285,780 together with interest thereon at the rate of 9% per annum from 6 April 2001 to date. The Master further ordered that the defendant refund to the plaintiff the sum of $6,027.33 being premiums paid by the plaintiff to the defendant. There is no appeal in relation to the refund of premiums and the interest and those aspects of the proceeding can be put to one side.
2. The plaintiff's claim arises out of an insurance policy on the life of her late husband Robin White issued by the defendant Zurich Australia Limited and commencing on 29 March 1988.
3. On a date unknown to the plaintiff but on or after 9 April 1992 Robin White died. The evidence in relation to his death may be summarised as follows.

1. On 9 April 1992 White, who then lived in Tasmania disappeared, leaving behind a suicide note.

2. Four days after White disappeared, his motor vehicle was located in a bush area of Tasmania.

3. Despite an extensive search by police officers, no trace of White has ever been found.

4. White has not been heard of by his family or friends since his disappearance on 9 April 1992.

4. By judgment of the Supreme Court of Tasmania delivered 9 February 2001 in a proceeding between the present plaintiff as applicant and the present defendant as respondent, the Court determined that a presumption of law was raised that White was dead.
5. On 6 April 2001 by order of the Supreme Court of Tasmania, the plaintiff was granted probate of the last will and testament of White.
6. On 16 May 2001 the plaintiff filed this proceeding in the Court seeking an order that the defendant pay the plaintiff the "Benefit Amount" for the "Indexed Term Cover" under the policy as at 9 April 1999.
7. On 21 November 2001 the plaintiff obtained summary judgment against the defendant for damages to be assessed.
8. In assessing the plaintiff's damages the Master made the following findings:

1. The plaintiff is entitled to be paid the benefits set out in the policy, on the death of White, and that those benefits increased each year throughout the life of the policy by reason of "an indexation option".

2. Robin White's death occurred on 9 April 1992 or very shortly thereafter. In reaching that conclusion the Master said:

"The only evidence from which I can infer the date of death is contained in the plaintiff's affidavit of 21 September 2001 wherein she deposes: '7. On or about 9 April 1992 my husband disappeared. I reported him missing on that day. Four days later, his motor vehicle a yellow Daihatsu van registered No. BU 047 was located on a bush road near Mt. Arthur at Lilydale in Tasmania. The police were notified of the discovery of the vehicle and conducted a search over the next two days covering six square kilometres. My husband's body was never found and I have not seen or heard from him since'."

3. The plaintiff is entitled to the sum of $285,700 being the death benefit payable under the policy as at 9 April 1992 (see para. 4 of the affidavit of Phillip Frank Borden sworn 28 February 2002.)

9. The finding of the Master challenged by the plaintiff is the finding that the deceased died on 9 April 1992 or very shortly thereafter.
10. What is said in that regard is that in the circumstances of this case it was only open to the Master (and now me) to find that the death of the deceased occurred either as at the date of institution of the first Tasmanian proceeding, namely 23 September 1999; or as at the date of institution of the present proceeding, namely 15 May 2001.
11. The proposition of counsel for the plaintiff is based on the decision of the High Court in Axon v Axon[1].
12. In Axon the Court was required to determine whether the first husband of the appellant was presumed to be dead as at the date of the appellant's second marriage to the respondent. The appellant's first husband had left her in 1923 and she had not seen him or heard from him again. The appellant then married the respondent on 6 January 1932. The respondent later claimed that his marriage to the appellant was not valid, because the appellant's first husband was still alive at the time it took place.
13. The Court held that if a person has not been heard of by persons who might have been expected to hear of him for a period of not less than seven years, he may be presumed to be dead at the time when the question arises in legal proceedings.
14. However, the Court made it clear that there is no presumption as to the time of his death.
15. Dixon, J. (as he then was) said at p.405:

"If, at the time when the issue whether a man is alive or dead must be judicially determined, at least, seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead. But the presumption authorizes no finding that he died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceeding the man no longer lives. In Lal Chand Marwari v. Mahaut Ramrup Gir (1925) L.R. 53 Ind. App. 24, at p.31; 42 T.L.R. 159, at p.160 Lord Blanesburgh, speaking for the Privy Council, said that there is only one presumption and that is that at the time when the suit was instituted the man there in question was no longer alive. 'There is no presumption at all as to when he died. That like any other fact is a matter of proof.' "

At p.411 Evatt, J. said:

"It is true that, apart altogether from the presumption of death prior to remarriage which, in my opinion, is required by the bigamy enactment, there exists the presumption which Stephen calls 'the presumption of death from seven years' absence.' Such presumption is of general application, and its nature and history are fully discussed in Re Phené's Trusts (1870) 5 Ch. App. 139. In that case, Giffard L.J., in a judgment which has since won frequent approval, quotes the case of Doe v. Nepean [1833] EngR 69; (1833) 5 B. & Ad. 86; 110 E.R. 724, where the Court of Exchequer Chamber had laid emphasis on the fact that the Act 18 & 19 Car. II c.11 (misquoted as c.6) distinctly points to the presumption of the fact of death, but not the time of death. As is pointed out in Stephen's Digest of the Law of Evidence, Art. 99, the general presumption of death carries with it no presumption as to the time of death, and the burden of proving death at any particular time is on the person who asserts it. Such general presumption operates so as to prove the fact of death at the time of the institution of the legal proceedings where the fact giving rise to the presumption is proved. Of course, in many cases, such presumption is sufficient to carry the person who relies upon it the necessary distance, e.g., in cases under an insurance policy, where the fact of the termination of the life is sufficiently proved if death can be presumed as at the time when the writ is issued (Prudential Assurance Co. v. Edmonds (1877) 2 App. Cas. 487). In many cases, however, where death must be shown to have occurred at some point of time anterior to the curial proceedings, the presumption may carry the party relying upon it only a certain distance, or no distance at all (Re Phené's Trusts (1870) 5 Ch. App. 139)."

16. In Allman & Co. v. McCabe[2] Boyd, J. said at p.402:

"In the case of persons of whom no account can be given, the law presumes their death at the expiration of seven years from the time they were last known to be living: Nepean v. Doe d. Knight [1837] EngR 285; 2 M. & W. 894; Doe d. George v. Jesson 6 East, 84; Doe d. Lloyd v. Deakin 4 B. & Ald. 433. In the case of Doe v. Nepean [1833] EngR 69; 5 B. & Ad. 86, approved of and followed in In re Phené's Trusts L.R. 5 Ch. App. 139, it was decided that where a person goes abroad and is not heard of for seven years the law presumes the fact that such person is dead, but not that he died at the beginning or end of any particular period during those seven years; that if it be important to anyone to establish the precise time of such person's death, he must do so by evidence."

See also William R. Davis et al v. R.F. Briggs et al[3].

17. In the present case it was necessary for the plaintiff to establish the date of death of the deceased to enable the Court to determine the extent of the benefit payable to the plaintiff under the policy.
18. From the plaintiff's own evidence, in particular paragraph 7 of her affidavit to which I earlier referred and the suicide note left by the deceased, it was open to the Master to infer that the deceased's death occurred on 9 April 1992 or shortly thereafter.
19. As this is a hearing de novo, based on that same evidence I also infer that the death of the deceased occurred shortly after he was last heard of on 9 April 1992.
20. In that situation the appeal must be dismissed with costs to be taxed and paid by the plaintiff.
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[1] (1937) 39 CLR 395

[2] (1911) 2 Irish R. 398

[3] (1878) 47 U.S. 628