Abdolhosini v Equity Trustees Superannuation Limited (ACN 055 641 757)
[2020] VCC 1617
•14 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-18-01834
| REZA ABDOLHOSINI | Plaintiff |
| v | |
| EQUITY TRUSTEES SUPERANNUATION LIMITED (ACN 055 641 757) | First Defendant |
| and | |
| AIA AUSTRALIA LIMITED (ACN 004 837 861) | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 24, 25, 26 and 27 August and 17 September 2020 (submissions) | |
DATE OF JUDGMENT: | 14 October 2020 | |
CASE MAY BE CITED AS: | Abdolhosini v Equity Trustees Superannuation Limited (ACN 055 641 757) & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1617 | |
REASONS FOR JUDGMENT
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Subject: INSURANCE – TOTAL AND PERMANENT DISABILITY CLAIM
Catchwords: Plaintiff suffered psychological injury in the course of his employment – claim for Total and Permanent Disability under Group Disability Policy – wording of policy subsequently amended to change the employment classification of members – plaintiff’s entitlement to benefit under policy dependent upon his employment classification – entered policy as “client services officer” – work involved duties at immigration detention centre – whether appropriate classification of employment as “prison officer/warden” or “security guard” – nature of the duties plaintiff performing at the time
Judgment:Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Bingham with Mr T Nathanielsz | Zaparas Lawyers |
| For the Defendants | Mr C Hanson | Moray and Agnew Lawyers |
HIS HONOUR:
Preliminary
1 Mr Abdolhosini was born in Iran and came to Australia with his parents at a young age.
2 After secondary school, he completed a Bachelor of Business at Swinburne University.
3 In his university years, he worked as a security guard or security officer. This involved work at pubs and clubs, managing patrons who came to those venues. On occasions, he had to demonstrate a physical presence, and remove patrons who were intoxicated or disruptive. Over time in these roles, he became more of a manager. He obtained various certificates in security and crowd control.[1]
[1]Exhibits 1 and 2 – Joint Court Book (“JCB”) 489-490
4 On 20 February 2012, Mr Abdolhosini obtained employment with Serco Australia Pty Ltd (“Serco”). His title was “client services officer”, initially as a trainee.[2] He worked at the Maribyrnong Immigration Detention Centre, and on occasions at another detention centre at Broadmeadows. From time to time he escorted clients of the centre overseas or interstate. It was a requirement of his employment he complete induction training.[3]
[2]Exhibit F – Offer of Employment – JCB 519-522
[3]Exhibits 4 and 5 – JCB 526-527; 529-530
5 For most of his employment, Mr Abdolhosini was engaged in duties in an area of the detention centre known as “Zone A”, which generally housed thirty or so clients. He mostly worked with another staff member, “Nick”.
6 On 1 July 2014, in the course of his employment duties, Mr Abdolhosini became embroiled in a physical confrontation within Zone A. There was a fight between two clients, one of whom had a history of violence. When he went to intervene, he was threatened, blows were thrown, and he was spattered with blood. Nick, with whom he was working at the time, was unable to assist, as he was locked in another area. One of the participants threatened to kill Mr Abdolhosini. When the situation eased, he was concerned that he may have contracted some bloodborne infection. Blood tests were negative, but took some months until the outcome was known.
7 As a result of this incident, Mr Abdolhosini developed a severe Post-Traumatic Stress Disorder with features of panic attacks and agoraphobia, together with a Major Depressive Disorder. He has received extensive psychological and psychiatric treatment in the years since and takes a range of medication. Having witnessed Mr Abdolhosini give evidence and be cross-examined, I am left in no doubt he is suffering a serious psychological disorder.
8 Mr Abdolhosini ceased work on the day of the incident and has not worked since. The medical opinions from various treating and consultant practitioners are uniform, in that Mr Abdolhosini is suffering a severe psychological disorder, and is incapacitated for work into the foreseeable future.
Total and Permanent Disability Insurance
9 When Mr Abdolhosini commenced work with Serco, he became a member of the Aon Superannuation Fund (“the Fund”). As such, he was entitled to disability insurance cover under the AIA Group Life (Death and Total and Permanent Disablement) Insurance Policy numbered MP9820, which came into effect from 1 July 2013 (“the 2013 Policy”).[4] The Trustee of the Fund at the outset was Aon Superannuation Pty Ltd (“Aon”). The second defendant, AIA Australia Limited (“AIA”), was the insurer under the 2013 Policy.
[4]Exhibit B – JCB 130-163
10 In November 2017, the first defendant, Equity Trustees Superannuation Limited (“Equity”), became the Trustee of the Fund in place of Aon.
11 There were rules of the Fund that in the event a member, including Mr Abdolhosini, became totally and permanently disabled, he would be entitled to a lumpsum benefit. The quantum of the benefit has been agreed.
12 Total and Permanent Disablement is defined in Clause 3 of the 2013 Policy:
“‘Total and Permanent Disablement’ (or its abbreviation ‘TPD’) means that the Member:
a) As a result of injury, sickness or disease:
i) has not performed any work for an uninterrupted period of at least six (6) consecutive months solely due to the same injury, sickness or disease: and
ii) is attending and under the regular care and following the advice of a Medical Practitioner and has undergone all reasonable and usual treatment including rehabilitation for the injury, sickness or disease; and
iii) after consideration of all the medical evidence and such other evidence as the Company may require, has become, in the opinion of the Company, incapacitated to such an extent as to render him or her unlikely ever again to be able to follow his/her usual occupation or any other occupation for which he/she is reasonably suited by education, training or experience;
… .”[5]
(“the standard definition of TPD”)
[5]Exhibit B – JCB 139
13 The test for total and permanent disability under the 2013 Policy and consequently the entitlement to a benefit, depended on a member’s occupational classification. Amongst the definitions contained in Clause 3 of the 2013 Policy is “Occupational Category”. That phrase was defined as:
“… the occupational group for premium rating purposes into which each individual Member’s occupation falls, according to the Company’s standard occupational guide, as set out in Schedules 1 & 2 and defined in this clause of the Policy.”[6]
[6]Exhibit B – JCB 138
14 Clause 4.7 of the 2013 Policy provided a definition of employment classification:
“All Members who are working fifteen (15) hours or more per week immediately prior to the injury, sickness or disease giving rise to the claim, will have their claim assessed in accordance with the definition of Total and Permanent Disablement in clause 3 of this Policy, except for those Members with an occupation listed on the Activities of Daily Living definition list, who will be assessed in accordance with the Activities of Daily Living Definition of Total and Permanent Disablement in clause 3 of this Policy.”[7]
(emphasis added.)
[7]Exhibit B – JCB 141
15 That means that providing a member is working at least 15 hours per week, he or she will be entitled to the disability benefit, providing he or she satisfies the standard definition of TPD, unless their occupation is listed in the Activities of Daily Living definition list. There is no issue Mr Abdolhosini was working more than 15 hours per week. The parties have agreed that if his employment classification falls under the standard definition of TPD, his claim succeeds.
16 The “Activities of Daily Living Definition of Total and Permanent Disablement” is also defined in Clause 3 of the 2013 Policy. It relates to the capacity of an insured to perform various activities of daily living over a certain period (“the ADL definition of TPD”). Notwithstanding the serious nature of Mr Abdolhosini’s psychological condition, the parties agree he does not meet that definition, and if his employment category falls to be determined under such a definition, his claim fails.
17 An important issue then is Mr Abdolhosini’s employment classification. This will determine whether he comes to be assessed under the standard definition of TPD, or under the ADL definition.
18 On 22 September 2014, Aon and AIA purported by agreement to issue a new policy wording document, said to come into effect from 1 July 2014 (“the 2014 Policy”).[8]
[8]Exhibit 7 – JCB 591-627
19 The definition of “Total and Permanent Disablement”, with some minor alterations, remained the same in the 2013 Policy. Likewise, the definition of “Occupational Category”.
20 However, in the 2014 Policy, the employment classification definition changed. Clause 4.11 provided:
“4.11 TPD Definition Where Member is aged less than sixty-five (65) and Working More Than Fifteen (15) Hours Per Week
All Members who are aged less than sixty-five (65) and working fifteen (15) hours or more per week immediately prior to the injury or sickness giving rise to the claim, will have their claim assessed in accordance with part A, B or C of the TPD definition outlined in Definitions section of this Policy except for those Members whose primary duties relate to an occupation classified as ‘ADL’ in the Aon Occupation Ratings Guide who will be assessed in accordance with part B or C of the TPD definition outlined in the Definitions section of this Policy.”[9]
(emphasis added.)
[9]JCB 606-607
21 Part A is the standard definition of TPD, Part B introduced a new category, “Irrecoverable Loss”, relating to the loss of limbs or eyesight, and Part C is the unchanged ADL definition of TPD.
22 The change is subtle but significant. Providing a member was working at least 15 hours per week and was under sixty-five years of age, the claim came to be assessed under (relevantly) the standard definition of TPD unless they were a member “whose primary duties relate to an occupation classified as ‘ADL’ in the Aon Occupations Rating Guide”.
23 While the plaintiff contends the changes in the 2014 Policy represent a retrospective re-assessment of eligibility by employment category, and are void and of no effect, there is no dispute that the plaintiff again satisfies the “standard” definition of TPD in the 2014 Policy. Further, there is no dispute the plaintiff does not satisfy the definition contained in parts B or C of the Aon Occupations Rating Guide.
24 By email dated 19 October 2016, a Ms Tamara Dalton, a claims and insurance administrator with Aon, advised a Ms Melissa Bailey of AIA, as follows:
“Mr Abdolhosini was added as a new employee via the AON Employer website. He was given a class 2 occupation category (White Collar) by the employer at the time he was added to the fund. (See ‘New Employee Add’ - attached).
As this was initiated by the employer directly on the website, the members cover was based on the his wages & occupation class as entered by the employer. I have attached the members welcome letter advising cover at the date of inception for your perusal.
… .”[10]
(sic)
[10]JCB 768
25 Thus, at the outset of Mr Abdolhosini’s employment, Serco considered his classification category as “white collar”. Neither Aon nor AIA demurred from this classification in the years after Mr Abdolhosini became a member of the Fund. In fact, Mr Abdolhosini was provided with various benefit statements over the years from June 2012 to June 2015.[11] His “occupation category”, conforming with the email above, was said to be “white collar”.
[11]JCB 729-767
26 Documents entitled the “AON Master Trust Corporate & Personal Super – Occupations ratings” for the years 2011,[12] 2014[13] and 2015[14] were tendered. On the second page, the heading is “AIA Australia Occupations Ratings”. The tender of these documents occurred through the evidence of Ms Rhiannon Eagles, a senior corporate counsel with a related company, Aon Hewitt. She produced what she described as the Aon Occupational Ratings Guide and ADL definition lists which were in force between 2012 and 2017. The documents were produced in response to a subpoena.[15] When asked to produce the “Activities of Daily Living definition list” (as referred to in Clause 4.7 of the 2013 Policy), Ms Eagles said:
“My understanding is that is contained within the Aon occupation ratings guides. That’s the list of occupations that appear in those documents.”[16]
[12]Exhibit 8 – JCB 491-502
[13]Exhibit 9 – JCB 579-590
[14]Exhibit 10 – JCB 628-639
[15]Exhibit 11
[16]Transcript (“T”) 184, Lines (“L”) 25-29
27 In these documents, under the heading “Aon Master Trust Ratings”, the occupation class of “white collar” is described as:
“Occupations that are office based with no manual work, eg clerical, professional or administrative roles such as architect, accountant, computer analyst, lecturer, social worker, administrator, clerk, etc.”
28 Further, in the same documents, the “Activities of Daily Living definition of TPD” is described as:
“Specialist licensed occupations eg pilot, or occupations with additional hazards eg miner, seafarer, armed forces personnel, professional sportsperson, or highly repetitive unskilled occupations eg process worker, long haul driver etc.”
29 Under “Important notes – Occupations with an ADL definition for TPD” there appears:
“If an occupation is provided with an ADL definition for TPD, the occupation factor associated with death cover will also apply to the same occupation. For example, as shown in the table below, the TPD occupation factor for an Abattoir Worker would be Heavy Blue and the TPD occupation factor for an Air Traffic Controller would be White Collar.”
30 Below these statements appears a long table setting out many hundreds of types of employment. Both “Prison Officer/Warden” and “Security Guard” are occupations which are listed and are both rated as “Heavy Blue Collar” for a death benefit and for TPD benefit.[17] “Client Services Officer” does not appear in the table. Neither the employer, Serco, nor Aon or AIA saw fit to classify Mr Abdolhosini’s job as “Heavy Blue Collar”, nor, obviously as a “Prison Officer/Warden” nor “Security Guard”.
[17]JCB 499-500
31 In relation to the 2013 Policy, the document which is said to classify the type of employment is the “Activities of Daily Living definition list”. In relation to the 2014 Policy, the classification document is the “Aon Occupations Rating Guide”. The document relied upon by the defendants as meeting these descriptions, as produced by Ms Eagles, has a different title. It is the “Aon Master Trust Corporate and Personal Super – Occupation Ratings”.[18] It is somewhat confusing, because the document, on the next page, bears the title “AIA Australia Occupation Ratings”.[19] Ms Eagles’ evidence was that she was informed by others at Aon that the relevant document was considered the Occupational Ratings Guide for the purposes of Clause 4.7 of the 2013 Policy, and Clause 4.11 of the 2014 Policy. She did not draw the document and was not an employee of Aon at the time it was drawn, nor over the years from 2012 to 2014. In Ms Eagles’ evidence, she did not provide any detail as to how it was these documents came to be the employment classification documents.
[18]JCB 491
[19]JCB 492
32 The opinion of an unnamed person at Aon or Aon Hewitt is not at all persuasive in considering whether the documents were indeed the documents referred to respectively in the 2013 and 2014 Policies.
33 In my view, there is merit in the submissions of Mr Bingham[20] that the document relied upon by the defendants does not constitute the Activities of Daily Living definition list nor the Aon Occupation Ratings Guide.
[20]Plaintiff’s closing submissions at paragraphs 52-71
34 While I have reservations about whether the documents can be relied upon as the defendants propose, because of my findings, I do not find it necessary to finally determine the matter. I will assume the documents relied upon by the defendants constitute the Activities of Daily Living definition list and the Aon Occupation Ratings Guide.
35 I should further add, there appears to me to be merit in Mr Bingham’s submissions[21] that the policy to be relied upon is the 2013 Policy. While the agreement which brought the 2014 Policy into existence was between Aon and AIA, nonetheless it clearly affected the employment categories of insureds under the policy and thus their entitlement to TPD and other benefits.
[21]Plaintiff’s closing submissions at paragraphs 12-27
36 The retrospective alteration of employment classifications, without notice, which results in the avoidance of claims which would otherwise be honoured, may well breach the insured’s duty of utmost good faith, as Mr Bingham submits.[22]
[22]Plaintiff’s closing submissions at paragraphs 137-142
37 Again, by reason of the findings I make, I do not need to consider the issue in detail nor determine it.
The issues to be determined
38 Essentially, there are two issues to be decided:
(a) If the 2013 Policy applies, is Mr Abdolhosini’s occupation one listed within the ADL definition list? If so, his claim fails;
(b) If the 2014 Policy applies, is Mr Abdolhosini a person whose “primary duties” relate to an occupation classified as ADL in the Occupation Ratings Guide? If so, his claim fails.
39 The determination of these issues depends upon an interpretation of the terms of the 2013 and 2014 Policies, the occupation classification documents and an assessment of Mr Abdolhosini’s employment, and the duties that employment entailed.
The evidence as to Mr Abdolhosini’s employment
40 In evidence, Mr Abdolhosini described his “primary duties” with Serco as “to interact and build rapport with the clients, to manage, you know, administrative duties and do welfare checks, primarily”.[23]
[23]T69, L5-10
41 On 19 August 2015, Mr Abdolhosini made a claim under the Policy, and completed a Claim Form.[24] He said the handwriting on the document was not his. The document asked as to Mr Abdolhosini’s “normal work duties”. There was written:[25]
[24]JCB 89-95
[25]JCB 91
Work duties % of time spent Patrols of Compounds 25% Transport and Escort Inc. Driving 15% Physically Deporting Detainees 15% Conflict Resolution 20% Room Searches 10% Welfare Checks/Administration 10% Distribute Personal Items 5%
42 In evidence, Mr Abdolhosini said that the percentage of time allocated to these various duties was incorrect. He said that patrol of compounds would have been 5 to 10 per cent; transport and escort, including driving, approximately 5 per cent; physically deporting detainees occurred three or four times during his employment, representing one or 2 per cent; conflict resolution, 5 to 10 per cent; room searches, he said occurred only two or three times, or one to 2 per cent; welfare checks/administration, 20 to 25 per cent; distribute personal items, 2 or 3 per cent.
43 Mr Abdolhosini said that most of his time was involved in building rapport and interacting with the clients.[26]
[26]T77-78
44 In cross-examination, Mr Abdolhosini said he thought he would be good at his job with Serco as he would be able to utilise his second language and use his immigrant background to assist with the welfare of the clients. He also thought his background in security would also help. He said at times, he would be required to de-escalate situations where there was physical conflict. There were times when he had to intervene with clients, physically.
45 Mr Abdolhosini was taken through the histories he was said to have provided to various medical practitioners, but said he could not recall being exposed to riots, punch-ons and suicidal hangings, as referred to in the report of Ms Rita Maulucci, his treating psychologist.[27]
[27]JCB 189
46 Mr Abdolhosini said that Zone A, where he worked, was not locked off from the rest of the facility and there was free movement in and out of it. He and Nick had an office where they attended to paperwork and where they monitored CCTV cameras. He accepted that there were occasional violent confrontations, and part of his role was to attempt to diffuse them. He could not remember being exposed to “dead bodies, bloodied detainees and the violence that created these situations”.[28]
[28]JCB 189
47 Mr Abdolhosini said there was an emergency response team which would be the first involved in a violent event. He thought violent episodes, including punch-ups and suicides, were a “once in a blue moon” event.[29] He could not recall being exposed to “bloodied and injured detainees, dead detainees who had suicided, regular violence amongst detainees, violence and threats directed at himself”.[30] He could not recall being allocated the role of first responder to violent events, nor being part of an emergency response team.[31]
[29]T118, L22-23
[30]T119, L20-24: JCB 215
[31]T120, L10-11
48 Mr Abdolhosini agreed he undertook patrols of the compounds at the centre. This involved checking fences, walls and doors to ensure they were in good repair and secure. On occasions, he would take the clients to appointments and ensure they did not run away. Sometimes he would accompany clients on planes to be returned to their country of origin. Conflict resolution was part of his duties, as were room searches, although he did very few of them over his employment, only one or two.[32] In the room searches, he was searching for contraband, mainly drugs.
[32]T123, L28-30
49 He distributed personal items which included toiletries, razorblades and sports equipment.
50 Mr Abdolhosini agreed that his memory had deteriorated over time and there were aspects of his employment he was unable to recall. He thought it may be due to the medication he was taking.
51 In Zone A the clients included maritime arrivals, others who had served a criminal sentence and others who had overstayed their visa.
52 Mr Abdolhosini denied there were frequent violent incidents at the centre.[33]
[33]T132-133
53 In September 2016, Mr Abdolhosini made application to this Court seeking leave to bring common law damages proceedings for psychological injury he suffered in the course of his employment with Serco (“serious injury proceedings”). He maintained he had suffered a severe psychological disorder arising out of his employment. In support of that application, he filed an affidavit sworn 30 September 2016.[34] He was taken to his affidavit where he deposed that he was employed as a security guard, albeit his position title was that of client services officer. He said that was an error. Further in the affidavit, he deposed that some of the detainees were criminals who had served prison time and were awaiting deportation. He accepted that at times, although rarely, he had to restrain detainees. According to the affidavit:[35]
“There were frequently incidents involving self-harm/self-mutilation, suicide attempts, fights and altercations. … .”
[34]Exhibit 6 – JCB 663-677
[35]At paragraph 14
54 Mr Abdolhosini said this was an error and that the area where he worked was not that volatile. He accepted that there were confronting incidents from time to time, although did not think that occurred very often.
55 Mr Abdolhosini accepted that he spent long hours standing and walking. He accepted he worked in a secure environment. He agreed his job involved interaction with, and listening to, the clients and informing management of any abuse or impropriety or health concerns. He was required to work with the clients in an empathetic manner and resolve problems decisively and non-confrontationally. Part of his job was to have daily contact with persons who might suicide or self-harm. He interacted with clients who had behavioural issues, and his duties involved acting in their welfare.
56 From time to time, he played football, basketball and chess with the clients. He also played pool with them. He helped clients fill out forms and helped translate documents for them. He said he used his language skills every shift.
57 The defendants sought to tender a report of Ms Aelan Bradley.[36] Ms Bradley is a rehabilitation counsellor and claimed experience in vocational rehabilitation and disability services. The report sought to conclude that the job requirements of a client service officer “related to” that of security officer, in that they performed similar duties. Likewise, the job demands of a prison officer/correctional officer were similar to those of a client service officer. The report stated:
“The primary duties of a Client Service Officer at Maribyrnong Detention Centre do relate to the occupation of Security Guard and Prison Officer.”[37]
[36]JCB 698-711
[37]JCB 706
58 However, I ruled the whole of the report inadmissible. I determined Ms Bradley did not bring any particular expertise to bear, had merely obtained information about the various job classifications over the internet, and her conclusions went directly to the final issues which I have to determine.
The submissions on behalf of the Defendants
59 Mr Hanson, on behalf of the defendants, said, in assessing the substance of the plaintiff’s occupation with Serco, the histories the plaintiff provided to the various medical practitioners, and his own evidence in the affidavit in support in the serious injury proceedings, ought to be preferred to his description of his duties in evidence before me. It was clear, said Mr Hansen, that given his psychiatric condition, his memory of events over the period from 2012 to 2014 was very poor. Mr Hansen emphasised the histories to various practitioners, including treating psychologist, Ms Rita Maulucci, and psychiatrists, Dr David Weissmann and Dr Michael Epstein, ought to be preferred, in addition to the descriptions in Mr Abdolhosini’s affidavit. They were all closer to the event.
60 Further, according to the evidence of Mr Abdolhosini, the Zone A area was more likely to house violent inmates, including criminals who had served prison time. In his job he was concerned about conflict and violence that occurred to and between detainees. Part of his job required surveillance and patrolling the centre. He was also required to transport and escort detainees, sometimes back to their country of origin. On occasions, he was required to physically restrain them, and became involved in conflict resolution. He occasionally searched rooms for contraband, including drugs.
61 Mr Hansen said Mr Abdolhosini intervened in confrontations, including the incident that occurred on 1 July 2014 with a detainee who had a history of violence.
62 Mr Hansen said the plaintiff had extensive experience in the security industry which provided him with skills necessary to undertake his work at the Centre. It was clear the induction program involved topics such as security awareness, mental health awareness, suicide awareness, use of force, use of restraints, conflict de-escalation, searching a detainee and seizure of items, together with operating surveillance symptoms. He was trained to deal with conflict.
63 Of significance was that in his affidavit sworn in September 2016, the plaintiff himself characterised his work with Serco as “security guard”. Mr Hansen said that the apportionment of duties in the Claim Form of August 2015 ought to be preferred to his evidence in this case.
64 Mr Hansen urged that, in considering the wording of the 2013 and 2014 Policies, the Aon Occupation Ratings Guide and the Activities of Daily Living definitions list should be construed:
(a) so as to give the documents a businesslike interpretation;
(b) in a commonsense and non-technical way, giving the agreement a commercially sensible construction;
(c) having regard to all of the words used in the agreement so as to render them harmonious with one another; and
(d) to ensure the congruent operation of the various components of the agreement as a whole.[38]
[38]Defendant’s closing submissions at paragraph 50
65 In respect of the 2013 Policy, Mr Abdolhosini’s claim came to be assessed under the ADL definition of TPD if he had the occupation of either security guard or prison officer/warden. He said the word “occupation” should be construed by reference to substance rather than form. He emphasised that while a person may have a certain job title, if in fact the duties he or she was performing were that of a different listed occupation, then, as a matter of proper construction taking a commonsense and commercially sensible approach, his occupation would be determined by what his duties were. For example if a person’s title was client services officer, but he or she spent all of their time answering telephones in an office at a detention centre, that person’s occupation would be that of receptionist, and not client services officer.
66 Mr Hansen said further, that in considering the third limb of the standard definition of TPD, there was reference to a person’s incapacity from “his usual occupation or any other occupation for which he is reasonably suited by education, training or experience”. This lent weight to his argument that regard should be had to the actual duties performed in an occupation, rather than to its title.
67 In substance, concluded Mr Hansen, the plaintiff’s occupation was that of security guard or prison officer/warden. As such, under the 2013 Policy, he would be assessed in accordance with the ADL definition of TPD.
68 In any event, Mr Hansen submitted that the plaintiff’s claim should come to be assessed under the 2014 Policy. As such “his primary duties relate to an occupation classified as ‘ADL’ in the Aon Occupation Ratings Guide”. Again, Mr Hansen submitted that the terms “security guard” and “prison officer/warden” were not terms of art, and should be given their natural and ordinary meaning.
69 Given the evidence, in particular contained in the plaintiff’s affidavit in the serious injury proceedings, the histories he provided to various medical practitioners and his own assessment of his job classification, it was clear, said Mr Hansen, that the substance of Mr Abdolhosini’s occupation was that of either a security guard or prison officer/warden.
70 Mr Hansen said further:
(a)Mr Abdolhosini’s occupation predominantly involved him being responsible for Zone A, which was used to detain about thirty people, including those who had served jail sentences, members of motorcycle gangs, those who had overstayed their visas and irregular maritime arrivals;
(b)His duties involved patrols of Zone A, undertaking headcounts, interacting with and supervising detainees to ensure the area was trouble free, undertaking welfare checks, as well as administrative tasks and CCTV observations;
(c)His duties included observations of the compound to ensure gates and fences were secured, transport of detainees, physically restraining them when there was conflict, searches for contraband, distribution of personal items and occasionally being allocated to the emergency response team;
(d)These duties involved him in physical confrontations, riots, hangings and other violent incidents, including that which occurred on 1 July 2014;
(e)His job required particular training to obtain a qualification in security operations;
(f)He had considerable experience as a security guard and in fact characterised his occupation with Serco as such.
71 It was clear from the above, said Mr Hansen, that the plaintiff’s primary duties related to that of the occupation of either security guard or prison officer/warden.
Analysis – the 2013 Policy
72 If the 2013 Policy is used to assess the plaintiff’s employment classification, for the defendants to succeed, Mr Abdolhosini’s occupation must be “listed on the Activities of Daily Living definition list …”.
73 I have determined that Mr Abdolhosini’s occupation classification does not come to be determined under the ADL definition of TPD. Rather, it comes to be determined under the standard definition of TPD. I say that for the following reasons:
(a) First, and most obviously, he was employed as a client service officer. That is a job description, or classification, which does not appear in the Activities of Daily Living definition list. There was no evidence AIA or Aon took any steps after Mr Abdolhosini became added as a member of the Fund to investigate whether his employment classification was appropriate nor to re-classify it;
(b) At the outset, Serco classified his occupation category as Class 2, or white collar. That was confirmed in benefit statements from 2012 to 2015. According to the Ratings Guide, that classification related to occupations that were office based, clerical or administrative in nature. Presumably Serco took the view that his duties as a client service officer fitted that description. Neither Aon nor AIA sought to demur from that classification;
(c) In contrast, the occupations of security guard and prison officer/warden, in terms of a TPD benefit, fell under the ADL classification as occupations which were said to be specialist licensed occupations or occupations with additional hazards;
(d) Mr Abdolhosini worked in the Maribyrnong Immigration Detention Centre and did not work in a prison. For that reason alone, he was not a prison officer nor a prison warden;
(e) While some of his duties did relate to management and supervision of persons detained in the centre, he was not managing nor supervising persons who were imprisoned as a consequence of being sentenced for some crime. Some clients of the centre may have had prior criminal sentences or even been convicted of offending, but they were not “imprisoned”. Further, others had outstayed visas, or were there for other migration-related reasons. It was emphasised to Mr Abdolhosini that the inmates be referred to as “clients”;
(f) As Mr Bingham, correctly in my view, submitted, there are many areas of employment where a person may have duties which involve the management and supervision of people who are detained, but yet not be a prison officer/warden or security guard. For instance those supervising patients in a psychiatric ward, or in some aged care facilities, those involved with persons quarantined as a result of sickness and even at least for part of the day, students or infants at schools or kindergartens. Zone A was not secured off from the other areas of the centre. Police officers regularly detain members of the public for a whole host of reasons. That does not make them prison officers or prison wardens;
(g) To the extent it is said Mr Abdolhosini’s job should be classified as a security guard, or his duties were those of a security guard, in my experience, security guards may perform a whole host of diverse duties. A security guard may work in clubs or hotels managing patrons, as Mr Abdolhosini had done when he was at university. Managing those patrons is employment very different from working in a detention centre; a security guard may drive around at night, checking to ensure premises are secured and not broken into; security guards work in courts screening persons who enter the building; some security guards are involved in escorting people or the transportation of cash or other valuables; some security guard jobs require persons who carry certain licences, including firearms licences, and some do not. The breadth of the duties of a security guard is such that it is impossible to provide a list of what a security guard’s duties might be, and then determine that Mr Abdolhosini’s duties at Serco fitted within that classification;
(h) Mr Hansen relies upon aspects of the plaintiff’s affidavit in the serious injury proceedings, the histories provided to various medical practitioners to which I have referred, the information contained in and the apportionment of tasks referred to in his Claim Form dated 19 August 2015 and the plaintiff’s own description of his work as that of a security guard. This evidence should be preferred, according to Mr Hansen, to his viva voce evidence in this proceeding, as his memory has been affected by his psychological disorder, or the medication used to treat it.
While I accept that Mr Abdolhosini’s memory has been affected, that does not mean I should reject his evidence before me, in particular his evidence as to the primary duties involved in his Serco work. Those statements should be seen in the light of the fact that the serious injury proceedings were directed towards those tasks which might be said to constitute a breach of the employer’s duty of care to provide a safe work environment, in particular, his involvement in violent confrontations such as the incident that occurred on 1 July 2014.
I accept Mr Abdolhosini’s evidence that some of the tasks which attracted him to the job included his ability to use his language skills to assist the clients and, being an immigrant himself, attempting to work with them in such a way as to assist with their welfare. I accept his evidence that the “primary duties” of the job were to interact and build a rapport with the clients, to manage them, to carry out administrative duties and undertake welfare checks. He was not challenged on this point.
Mr Abdolhosini said that predominantly his duties were administrative and involved the completion of paperwork in an office used by himself and Nick. He regularly interacted with the clients, including assisting them with the completion of documents and translations, playing various games and checking upon their welfare. Thus, while some of his employment tasks would be similar to those undertaken by a prison officer or prison warden, or even a security guard, as wide as that job classification might be, there were many other tasks which were not, in particular his “primary tasks”;
(i) To accept Mr Hansen’s interpretation of Clause 4.7 in the 2013 Policy would, as Mr Bingham submitted, require the imposition of the phrase “whose employment tasks were in substance those …” after the word “members”. There is no proper basis upon which such a phrase, or something like it, should be interposed to give business sense to the definition. It is clear and stands on its own without the need for any interpretive addition.
Commonsense would dictate that if in fact the tasks of a person who worked in a detention centre were vastly different from those of the person’s job title, such as those of a receptionist, or social worker or maintenance officer, then there may be some merit in the argument; however, that was not the case in Mr Abdolhosini’s job.
74 I conclude that to the extent the 2013 Policy is said to apply, Mr Abdolhosini’s claim should be assessed in accordance with the standard definition of TPD.
Analysis – the 2014 Policy
75 If the 2014 Policy has application, then for the defendants to succeed, Mr Abdolhosini’s occupation must be one “whose primary duties relate to an occupation classified as ‘ADL’ in the Aon Occupation Ratings Guide …”. As earlier observed, this is a different definition, and includes concepts of “primary duties”, and whether those primary duties “relate to” a classified occupation.
76 I have determined that Mr Abdolhosini’s duties come to be determined under the standard definition of TPD, and not the ADL definition. I say that for the following reasons:
(a) It is uncertain what is meant by the phrase “primary duties”. Mr Bingham submits the shorter Oxford English Dictionary defines “primary” as “that which (or one who) is first in order, rank or importance”. The only evidence as to what Mr Abdolhosini’s “primary duties” were, was his evidence “to interact and build rapport with the clients, to manage, you know, administrative duties and do welfare checks, primarily”.[39] As earlier observed, he was not challenged on this evidence.
[39]T69, L5-10
(b) It is further uncertain what the phrase “relate to” is intended to mean. Does this mean “the same as”? or does it mean “are similar to”? or does it mean “bears some relationship to”? The uncertainty as to the meaning of this phrase makes it difficult to determine whether Mr Abdolhosini’s occupation should be classified as ADL in the Ratings Guide.
(c) In order to determine whether the “primary duties” of Mr Abdolhosini’s work at Serco were related to the occupation classifications of prison officer/warden or security guard, it is necessary to understand what the duties, or primary duties (if that was the intended interpretation) of those respective occupations were. There was no evidence before me as to what the duties or primary duties in those occupations are. I have already commented on the wide range of duties which might be performed by a security guard, depending upon the nature of the work involved. I have a general understanding of the work of a prison officer or prison warden and have visited many prisons. I would be prepared to take judicial notice of the duties I have observed prison officers and prison wardens performing and to take account of my general understanding of the tasks involved in those roles. While there would be many aspects of the tasks of a prison officer or prison warden which could be said to be similar to those performed by Mr Abdolhosini, it would seem to me there were many of his tasks which would not be so similar. In particular, his work in translating and attending to the welfare of the clients. Again, I am of the view that a detention centre is a different place from a prison, as are the inmates who are detained there. In the end, I cannot be satisfied that the “primary duties” of Mr Abdolhosini’s occupation “relate to” what I understand to be the duties, primary or otherwise, of a prison officer, prison warden or security guard.
(d) As Mr Bingham submitted,[40] there were many duties performed by Mr Abdolhosini which would not be expected to be performed by a prison officer, prison warden or security guard. These included:
[40]Plaintiff’s closing submissions at paragraphs 112, 114 and 120
(i) to interact and build rapport with the clients;
(ii) to work with them in an empathetic manner, treating them with dignity, integrity and equality;
(iii) to respond to problems on a non-confrontational basis;
(iv) to use his language skills to assist with translation;
(v) duties which were primarily managerial and office based; and
(vi) interaction with the clients including through various sports and games.
(e) Further, the matters referred to in sub-paragraphs (b), (c), (d), (e), (g) and (h) of the analysis of the 2013 Policy have, where relevant, application to the interpretation of the 2014 Policy.
77 I conclude that to the extent the 2014 Policy is said to apply, Mr Abdolhosini’s claim should be assessed in accordance with the standard definition of TPD.
Conclusion
78 As noted, I have reservations as to whether the document relied upon by the defendants constitutes the “Activities of Daily Living definition list” as referred to in Clause 4.7 of the 2013 Policy and whether it has application to the “Aon Occupation Ratings Guide” referred to in Clause 4.11 of the 2014 Policy. I further have reservations about whether the 2014 Policy has application given the manner in which it came into effect, and the fact that it narrowed the occupation classifications of persons entitled to a benefit under the Policy.
79 Notwithstanding these reservations however, I am of the view that whichever policy applies, Mr Abdolhosini’s employment classification comes to be determined under the standard definition of TPD.
80 Mr Abdolhosini’s claim succeeds.
81 I shall hear from the parties as to further orders and costs.
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