This is an internal appeal by a consumer, Penelope Hill, from a decision of the Tribunal's Consumer and Commercial Division dismissing her application that the respondent insurer, Mapfre Insurance Services Australia Pty Ltd (Tick Travel Insurance), was liable to pay her for "lost luggage" under her travel insurance policy. In essence, Ms Hill believes the Member misconstrued the policy.
For ease of reference we shall refer to the respondent as Tick Insurance.
[2]
Background
On 17 November 2018 Tick Insurance issued a certificate of insurance to Ms Hill for travel insurance for the period 19 December 2018 to 3 January 2019. Ms Hill left Sydney on 19 December 2018 on a Cathay Pacific flight and arrived at Heathrow Airport the following day. Ms Hill was part of a Trafalgar European tour and was due to travel to Amsterdam the next day and then on to various other cities, returning to London on 1 January 2019.
When Ms Hill arrived at Heathrow on 20 December 2018 her luggage could not be located. On 22 December 2018 she telephoned Tick Insurance to report her missing luggage. Ms Hill's understanding of the conversation with the representative that she spoke to was that, as her luggage was lost, she should proceed to replace all her lost items and states that she was told by the representative to "go for it". Tick Insurance disputes this and we will return to the conversation below.
On 24 December 2018 Cathay Pacific sent an email to Ms Hill to inform her that her luggage was at Frankfurt Airport and asked her to advise where it should be delivered. Ms Hill did not receive the email as her laptop, which she states was her only means of receiving emails, had been packed in the luggage. Ms Hill was staying at a hotel in Frankfurt at the time and, unfortunately, when the tour operator telephoned the hotel to advise the luggage was found, the hotel said that Ms Hill was not there.
Ms Hill bought various items of clothing when she arrived in London to find her luggage missing and some other items during her holiday. She returned to Australia on 3 January 2019 and the next day purchased a new laptop. On 18 January 2019 the luggage was returned to her in Sydney. On 4 February 2019 Ms Hill lodged a claim with Tick Insurance for compensation for lost luggage.
On 22 February 2019 Tick Insurance paid Ms Hill $400, being the full benefit under the insurance policy for delayed luggage. After taking into account the excess of $200, Ms Hill claims an additional amount of $2,708.72 on the basis that her luggage was lost and not merely delayed.
When the matter came before the Tribunal the Member found that the Product Disclosure Statement, which Ms Hill stated she had been provided with, was in plain English. She found that Ms Hill's luggage was delayed and that she was paid the full benefit under the policy for delayed luggage. The Member further found that that the luggage was not "permanently lost" as required by the policy before a benefit could be paid for lost luggage. She further found that Ms Hill was not told by Tick Insurance on 22 December 2018 that she should proceed to replace all her items as her luggage was lost.
[3]
The Appeal
In her appeal Ms Hill listed a number of grounds of appeal. She stated that the Tribunal ignored consumer law and case law; gave flawed and/or inadequate weight to her evidence; made errors, misreported, misunderstood, omitted or misinterpreted facts, law and evidence; and denied her natural justice.
In relation to all grounds of appeal Ms Hill states that she seeks leave to appeal as she has suffered a substantial miscarriage of justice.
On 2 April 2020, the Appeal Panel ordered (see order 5)that the appeal is to be decided on the papers; that is, determined on the basis of the written material filed without the need for a formal hearing: see s 50(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). The order dispensing with a hearing was made with the agreement of the parties. We have therefore had regard to the Notice of Appeal filed by Ms Hill, her further submissions filed in support of the appeal and the submissions of Tick Insurance.
[4]
Applicable legal principles - internal appeals
Section 80(2)(b) of the NCAT Act states:
Any internal appeal may be made:
(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
Clause 12 of Schedule 4 to the NCAT Act states with respect to decisions made in the Consumer and Commercial Division that:
An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a) the decision of the Tribunal under appeal was not fair and equitable, or
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In the present appeal Ms Hill has stated she seeks leave to appeal but also appears to argue that the Tribunal made errors of law. In the circumstances, it is appropriate for the Tribunal to determine, looking at the grounds of appeal generally, whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]; Cominos v Di Rico [2016] NSWCATAP 5 [13].
In Prendergast at [13], the Appeal Panel said that the following are errors of law:
1. whether the Tribunal provided adequate reasons, which explain the Tribunal's findings of fact and how the Tribunal's ultimate conclusion is based on those findings of fact and relevant legal principle;
2. whether the Tribunal identified the wrong issue or asked the wrong question;
3. whether it applied a wrong principle of law;
4. whether there was a failure to afford procedural fairness;
5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration;
6. whether it took into account an irrelevant consideration;
7. whether there was no evidence to support a finding of fact; and
8. whether the decision was legally unreasonable.
Ms Hill states that the Tribunal ignored relevant law and denied her natural justice (or procedural fairness). These would amount to errors of law if made out. In relation to the other grounds of appeal Ms Hill seeks leave to appeal on the grounds the Tribunal's decision was not fair or equitable and was against the weight of the evidence. These grounds accurately reflect the terms of cl 12(1) of Schedule 4 of the NCAT Act pursuant to which leave to appeal on grounds not raising a question of law may be sought.
Obtaining leave to appeal is a two-stage process. At the first stage Ms Hill must persuade us that she may have suffered a substantial miscarriage of justice under clause 2 of Schedule 4, because of one or more of the matters referred to in her grounds of appeal. Should she persuade us that she may have suffered a substantial miscarriage of justice she must then, at the second stage, persuade us that we should exercise our discretion to grant leave to appeal on one or more of those grounds. The principles applicable to the granting of leave were set out in Collins v Urban [2014] NSWCATAP 17 at [65] - [84].
For the reasons which appear below we are not satisfied that the Tribunal has made an error of law, nor are we persuaded that Ms Hill has suffered a substantial miscarriage of justice.
[5]
Consideration
Ms Hill states that the Member denied her natural justice (procedural fairness). She has not, however, detailed the basis for that submission. Ms Hill provided written evidence to the Tribunal and appeared at the hearing where she was permitted to put her case. The Member's reasons for decision show that her evidence was taken onto account in the making of the decision. We do not consider that she was denied natural justice (procedural fairness).
Ms Hill also states that the Member misapplied the relevant law. Ms Hill refers to cases which relate to the prohibition on corporations and suppliers from engaging in "misleading and deceptive conduct". She states that Tick Insurance seeks to use the term "permanently" to avoid its liability to pay her for lost luggage. She further states the term is vague and uncertain and should be construed against the insurer. We understand Ms Hill's submissions in this regard, insofar as the Member's decision is concerned, to be that the Member erred in her construction of the terms of the insurance policy as they relate to "delayed" and "lost" luggage.
In our view, the terms of the policy as set out in the Product Disclosure Statement are clear. Section E1 states that Tick Insurance "will pay up to the amount shown in the Table of benefits for items owned (not rented) by you which are lost, stolen or damaged" during the insured's trip. Ms Hill had "Top" cover and was therefore entitled to the benefits set out in the Table for that type of cover. Sections E2 to E5 then contain more specific information about particular types of loss. Section E3 relates to "Delayed luggage" and provides that Tick Insurance will pay up to the amount shown in the Table of benefits for the reasonable cost of buying essential items if baggage is delayed by an airline or transport company during the trip for more than 24 hours. There was no question that Ms Hill's luggage was delayed for more than 24 hours and that she was paid $400 for the purchase of essential items. Importantly, Section E3 goes on to state:
You must get written confirmation of the length of the delay from the appropriate airline or transport company and you must keep all receipts for the essential items you buy. If your baggage is permanently lost we will deduct any payment we make for delayed baggage from your overall claim for baggage.
The Member stated in her decision that, in her view, "permanent" means enduring or lasting indefinitely. She did not accept that, as the luggage was not returned to Ms Hill before the end of her trip, it was permanently lost. Her conclusion was that, as Ms Hill was notified by email on 24 December 2018 that the luggage had been found and because her luggage eventually made it to her in Sydney after her return, it could not be said that it was permanently lost. This was particularly so as the luggage was physically returned to Ms Hill two weeks before she lodged her claim.
We can see no error in the Member's interpretation of the term "permanently lost". Her interpretation accords with normal English usage and, on the facts, it is clear the luggage was never permanently lost and indeed was located within four days of Ms Hill's arrival at Heathrow. The fact that Ms Hill could not be contacted as she had put her laptop in her checked in luggage and does not appear to have used any other means to check emails, has no bearing upon the objective fact of whether the bag was lost. Similarly, while, as the Member said, it was unfortunate that the hotel in Frankfurt could not find her name on the guest list on 24 December 2018, that also does not alter the fact that her luggage had been found and was not lost.
It is not clear from the Member's reasons whether the issue of deceptive and misleading conduct was raised directly at the hearing by Ms Hill as neither party has provided a transcript of the hearing. In any event, we are not satisfied that the issue arises on the facts of this case as the Product Disclosure Statement is in plain English and, in our view, is clear and not misleading. The Member made a clear finding in this regard in her reasons. The Product Disclosure Statement makes a distinction between luggage which is delayed for more than 24 hours but which reaches its owner sometime later and luggage which is permanently lost in that it is never found or not found within a reasonable period.
Nor are we satisfied that there is any misleading or deceptive conduct on the part of Tick Insurance arising out of the telephone conversation between Ms Hill and a representative of the insurer on 22 December 2018. We agree with the Member's conclusion, based on a transcript of the conversation, that the representative did not tell Ms Hill to "go for it", or any words to that effect, in purchasing replacement items. It is apparent that the representative queried Ms Hill's use of the word "lost" and asked Ms Hill if she had confirmation that the bag was lost. Ms Hill replied "Yes" and the representative then said to Ms Hill that she would open a file for her for lost luggage "since there was a confirmation that your baggage was lost". Ms Hill was then advised to fill out a claim form.
The information provided to Ms Hill by the representative was made in light of the information provided to her by Ms Hill that she had confirmation that her luggage was lost and in accordance with the information in the policy and was therefore not misleading or deceptive. It is apparent from the facts of the case that at this point in time the luggage was not lost and Ms Hill has not provided anything which suggests she had confirmation that her luggage was lost rather than delayed.
In her appeal, Ms Hill also refers to the Member making errors of fact in her reasons for decision, for example, referring to the trip being 9 days when it was for 16 days, ignoring her evidence, including her contemporaneous notes of the telephone conversation with insurer's representative and being confused about the chronology and sequence of events. She submits, in effect, that the Member's decision was against the weight of the evidence. The expression "against the weight of evidence" in the Tribunal means that the evidence in its totality preponderates so strongly against the conclusion favoured by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23 at [153], followed in Collins v Urban at [77].
We are not satisfied that any error has been established in the manner in which the Member considered the evidence. Small errors such as the duration of Ms Hill's trip were immaterial to the outcome and the matters to be decided. The mere fact that Ms Hill disagrees with the outcome is not sufficient to establish any error. In our view the findings made by the Member were reasonably available on the evidence put forward by both parties at the hearing.
Ms Hill also submits that she has suffered a substantial miscarriage of justice as the decision was not fair and equitable. There is no doubt that Ms Hill has genuinely held views about the decision which she believes should have been made in her application to the Tribunal. It is clear that she feels aggrieved that she has been unable to recoup the full amount of expenditure on items purchased during her holiday. That is, however, not a basis upon which we may conclude that the decision was not fair and equitable.
None of the grounds of appeal have been established. Leave to appeal is therefore refused and the appeal is dismissed.
[6]
Orders
We make the following orders:
1. Leave to appeal refused.
2. Appeal dismissed.
[7]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[8]
Amendments
04 August 2020 - Date of decision corrected.
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Decision last updated: 04 August 2020
Parties
Applicant/Plaintiff:
Hill
Respondent/Defendant:
Tick Travel Insurance/Mapfre Insuranace Services Australia Pty Ltd