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VIC What are My Rights Under Insurance Law?

Discussion in 'Insurance Law Forum' started by Louise_jayne80, 16 July 2016.

  1. Louise_jayne80

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    Hi,

    I recently broke a back molar tooth while eating a salad which contained a rock. The Insurer is being difficult. She has requested the past 4 years of all dental medical and My GP patient records - which I believe is extreme - and I won't do this.

    My dentist has sent her a report saying that because the tooth is broken in half now, it will require a crown. Unfortunately, the insurer is trying to deem this as pre-existing and are refusing to progress the claim.


    I had had a root canal last year and a filling - however, the molar was fine and the root canal was also fine at the time I bit the rock.

    The insurer is saying that because the tooth had "previous work" it could be "weakened" and as the "root canal treatment is invasive" they want to refuse the claim.

    What are my rights under insurance law in relation to the "eggshell plaintiff doctrine"? Am I in my right to claim this, as the issue only presented itself after I bit the rock?

    The claim for the repair to the tooth is $1900 and seeking legal advice is going to cost me half of that.

    Any help in dealing with this insurer and my rights would be greatly appreciated ...

    Many thanks,
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Louise,

    This is typical of insurers trying to argue their way out of paying. Keep at them and stand your ground. I do not however necessarily think that past 4 years of dental records would be an unreasonable request. They probably would have the right to request those if the matter was litigated so I would just provide them. They will support your version of events anyway, if the tooth was stable prior to the rock incident.

    The ‘egg shell skull’ rule provides that a person liable for negligence must take the victim as he or she finds him or her. So the insurer is liable for the full extent of injuries caused even though the injuries may not have been as extensive if your tooth had not been unusually susceptible.

    I would continue to demand they pay for the full amount of the cost of the crown, provide the medical records and the evidence from your doctor stating that the tooth was stable before hand. You can also point out that they are not entitled to refuse or reduce their liability notwithstanding your previous work on that tooth, because the eggshell skull principle states that they are liable for the full extent of your injuries even though they may not have been as extensive on a normal person.
     
  3. Louise_jayne80

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    Many thanks Sophea - your advice is greatly appreciated. Many thanks for your time.
     
  4. Louise_jayne80

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    The insurer has advised this but I am not sure how much this is factually correct. Namely the third paragraph! What do you think ?

    -----

    "Thank you for your email Louise,

    Public liability insurance provides cover where a Third Party is physically injured or their property is damaged due to the negligence of an Insured. A claim is not automatically covered by public liability insurance. Investigations are undertaken by an insurer as to the facts and circumstances surrounding the incident before a decision is made as to whether a claim will be covered.


    The request for your GP / specialist / doctor / medical records is done in order to expedite the claim.


    As for the “eggshell plaintiff doctrine” this is only a criminal law concept which does not apply in this instance. In layman’s terms, we do not have to accept “the condition you were in at the time of the incident”. If we find that the insured is liable and you have a pre-existing injury, we will request that you contribute to the payment of the treatment.

    I trust that the other points raised have been answered.

    In order to avoid undue delay, I would be grateful if you could reconsider providing us with access to your medical/dental records.

    Regards.
     
  5. Sophea

    Sophea Well-Known Member

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    The egg-shell skull principle is not only a criminal law concept and as far as I can tell would apply in this circumstance. Check this out: Potential application in tort actions | ALRC and the casenote on the case of Shorey v PT Limited
     

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