19 December 2015


In Ingram v QBE Insurance (Australia) Ltd (Human Rights) [2015] VCAT 1936 the Victorian Civil and Administrative Tribunal has dealt with a claim of direct discrimination regarding the provision of services based on the inclusion of a mental illness exclusion in a travel insurance policy and regarding provision of services when indemnity was denied in reliance on a mental illness exclusion in a travel policy.

The VCAT decision is specific to the particular claims and should be read with care.

The report states
In late 2011, during the course of her year 11 studies, Ms Ella Ingram and her mother decided she could join a school tour to New York scheduled for 30 March to 11 April 2012. The required deposit and subsequent instalments were all paid. Some of the costs were applied to a travel insurance policy issued by QBE Insurance (Australia) Ltd (QBE) on 8 December 2011.
In about January 2012, for the first time in her life, Ms Ingram experienced symptoms of depression. Over the course of the following months she was diagnosed with that illness and received treatment. In consultation with her doctors and mother, Ms Ingram decided not to go on the planned school trip, in the interests of her health.
In about April 2012, Ms Ingram’s mother made enquiries about claiming the cost of the trip on the QBE policy. The claim for $5,860 was lodged in May 2012 and was denied by QBE on 17 August 2012. The refusal was confirmed by a further letter sent on 4 December 2012.
In rejecting the claim, QBE relied upon a general exclusion that said, in summary, there is no cover where the claim arises directly or indirectly due to mental illness. There is no dispute that the definition of mental illness in the policy includes depression. In its 4 December 2012 correspondence to Ms Ingram’s mother, QBE said that the decision to refuse the claim was based on detailed statistical modelling and analysis of claims arising from a range of causes including mental illness. QBE said that mental illness is excluded from the policy because its statistics demonstrated that in travel policies there is a high risk of cancellation because of mental illness.
Ms Ingram said by including the mental illness exclusion in the policy, QBE treated her unfavourably because of her disability and directly discriminated against her in the terms on which it provided the service of travel insurance. Ms Ingram said that conduct was a breach of section 44(1)(b) of the Equal Opportunity Act 2010 (Vic) (EOA). Ms Ingram further said that, by refusing to indemnify her in August and December 2012 on the basis of her mental illness, QBE treated her unfavourably because of her disability and so directly discriminated against her contrary to section 44(1)(a) of the EOA.
Ms Ingram has sought a declaration that QBE unlawfully discriminated against her, compensation for economic loss and the damage of hurt and humiliation suffered by her and costs. The economic loss claimed is $4,292.48 which takes account of a flight costs refund. Ms Ingram sought $20,000 in compensation for hurt and humiliation.
QBE denied discriminating against Ms Ingram. In its defence it said that it did not refuse to provide insurance to Ms Ingram because of her disability. Rather, the policy wording contained an exclusion for mental illness. [1] Further or alternatively, QBE said that, if it did discriminate against Ms Ingram in either of the ways alleged, that discrimination was lawful because an EOA and/or a Disability Discrimination Act 2004 (Cth) (DDA) exception applied.
 In its summary VCAT (single member) states
At the relevant points in time, Ms Ingram had a ‘disability’ within the meaning of that term in the EOA;
QBE engaged in direct discrimination in breach of section 44 of the EOA first, when it issued her with a policy which included the mental illness exclusion and second, when it refused her indemnity relying on the terms of that exclusion;
QBE cannot rely upon the statutory exceptions to excuse the discrimination. That is because QBE has not produced evidence to prove it is more probable than not that:
  • At the relevant points in time, the acts of discrimination by QBE were based on actuarial or statistical data. I have found I cannot infer otherwise. Accordingly, the exception contained in section 47(1)(b) of the EOA and section 46(2)(f) of the DDA which depend on such data do not apply;
  • It would have suffered unjustifiable hardship if it had not included the mental illness exclusion in the policy issued to Ms Ingram. Accordingly, the exception contained in section 29A of the DDA does not apply;
As a consequence, QBE engaged in unlawful discrimination when it included the mental illness exclusion in the policy issued to Ms Ingram and when it denied her indemnity relying on that exclusion;
Ms Ingram is entitled to economic loss in the sum of $4,292.48, being the value of her cancelled trip;
Ms Ingram is entitled to non-economic loss in the sum of $15,000 for hurt and humiliation; and Ms Ingram is entitled only to the costs associated with her expert being required for one additional day.
Importantly, VCAT states
Ms Ingram applied for a declaration that QBE had engaged in unlawful discrimination.
I have declined Ms Ingram’s application to ensure that an impression is not given that my decision automatically applies beyond the dispute between these parties and, in particular, to avoid any impression that it applies to all insurers.