Camilleri v Australian Casualty & Life
[2006] NSWDC 77
•27 October 2006
CITATION: Camilleri v Australian Casualty & Life [2006] NSWDC 77 HEARING DATE(S): 17-19 July, 18 August 2006
JUDGMENT DATE:
27 October 2006JUDGMENT OF: Rein SC DCJ DECISION: See [115]. CATCHWORDS: INSURANCE - Income Protection Policy - total disability - whether requirements met - whether insurer entitled to deduct a portion of workers compensation settlement received by insured - whether insurer repudiated contract - whether insured elected not to terminate for repudiation or breach LEGISLATION CITED: Workers Compensation Act 1987, s 66 CASES CITED: Alessi v National Mutual Life Association of Australasia Ltd (1982) 2 ANZ Ins Cas 60-481
Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1
Allsop v Federal Commissioner of Taxation (1965) 113 CLR 341
ASIC v Rich (2005) 218 ALR 764; [2005] NSWCA 152
Associated Newspapers Ltd v Bancks (1951) 83 CLR 322
Broadlands Properties Limited v Guardian Assurance Company Limited (1984) 3 ANZ Ins Cas 60-552
Browne v Dunn (1893) 6 R 67
Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175
CIC Insurance Ltd v Bankstown Football Club Ltd (unreported, NSWSC, Cole J, 16/09/93)
Commercial Union Insurance Co Ltd v Willetts Radio & TV Ltd (1985) 3 ANZ Ins Cas 60-677
Constantinides v Du Pont Superannuation Fund Pty Ltd (2002) 68 ALD 664; [2002] FCA 534
Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82
Dean v J Thomas & Son [1981] Qd R 62; (1980) 1 ANZ Ins Cas 60-402
Distillers Co (Bio-Chemicals) (Aust) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Edwards v Insurance Office of Australia Ltd (1933) 34 SR (NSW) 88
Green v AMP Life Ltd (2005) 13 ANZ Ins Cas 90-124; [2005] NSWSC 370
H v First State [2003] NSWIR Comm 293
Harrison v Zurich Australian Insurance Ltd (BC9603264, NSWSC, Rolfe J, 30/7/1996)
Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26; [1993] HCA 27
Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325
Johnson v Australian Casualty Co Ltd (1992) 7 ANZ Ins Cas 61-109
Judd v Suncorp Insurance & Finance (1987) 5 ANZ Ins Cas 60–832
Kennedy v Queensland Insurance Co (1924) 24 SR (NSW) 542
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65
McLaurin v Federal Commissioner of Taxation (1961) 104 CLR 381
Porter v OAMPS Ltd (2004) 207 ALR 635; [2004] FMCA 272
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
Riley v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-684
Roadshow Entertainment Pty Ltd v ACN 053 006 269 Pty Limited (receiver & manager appointed) (1997) 42 NSWLR 462
Ross T Smyth & Co Ltd v TD Bailey Son & Co [1940] 3 All ER 60
Russell Young Abalone Pty Ltd v Traders Prudent Insurance Co Ltd (1993) 7 ANZ Ins Cas 61–182
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Shevill v Builders Licensing Board (1982) 149 CLR 620
Southern Cross Assurance Co Ltd v Australian Provincial Assurance Association Ltd (1939) 39 SR (NSW) 174
Szuster v Hest Australia Ltd (2000) 207 LSJS 35; [2000] SADC 2
Taylor v J Thomas & Son (1983) 2 ANZ Ins Cas 60-524
The Glendarroch [1894] P 226
Till v National Mutual Life Association of Australasia Ltd (2005) 13 ANZ Ins Cas 61-640; [2004] ACTCA 26
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632
Tropicus Orchids Flowers and Foliage Pty Ltd v Territory Insurance Office (1998) 148 FLR 441; 10 ANZ Ins Cas 61-412
Walton v Colonial Mutual Life Assurance Society Ltd (2004) 13 ANZ Ins Cas 61-620; [2004] NSWSC 616
Wiley v Board of Trustees, State Public Sector Superannuation Scheme (unreported, SC(Qld), White J, 3/4/1997, BC9701020)
Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17PARTIES: John Camilleri (Plaintiff)
Australian Casualty & Life (Defendant)FILE NUMBER(S): 782/03 COUNSEL: Mr T Hale SC, Mr M Murphy (Plaintiff)
Mr R Cavanagh (Defendant)SOLICITORS: Church & Grace (Plaintiff)
Turks Legal (Defendant)
JUDGMENT
1 HIS HONOUR: These proceedings arise out of a claim made by the plaintiff upon a policy of insurance originally issued by Australian Casualty & Life (“AC&L”) following an accident on 30 December 1997 in which the plaintiff was injured whilst riding a quad bike. Mr T Hale SC, with Mr M Murphy of counsel, appears for the plaintiff, and Mr R Cavanagh of counsel appears for the defendant.
2 There is no dispute that National Mutual Limited has taken over the obligations of AC&L and stands in its shoes. I shall refer to AC&L/National Mutual Ltd as “the insurer”.
3 The insurer made payments in accordance with the policy for two years after the accident, until 16 May 2000, but on 7 June the insurer wrote to the plaintiff stating:
“Based on the medical evidence on file we believe you to be fit to perform the occupation of farm owner/manager … you are no longer entitled to benefits under this policy”.
4 Lawyers acting for the plaintiff sought a review of the insurer’s position and provided further information but the insurer maintained its position that the plaintiff did not meet the criteria of the insuring clause for total disability. Between 2001 and 2002 there was further correspondence and on 25 February 2003 the plaintiff issued a Statement of Claim in this Court.
5 There is no dispute that the Statement of Claim filed asserted the continuation of the policy and sought payment of the past benefits, to be updated as at the date of the hearing.
6 On 13 February 2004 the plaintiff filed an Amended Statement of Claim – it pleaded that the failure of the insurer to pay the monthly benefits was a “repudiation of the policy of insurance by the insurer and was continuing and the plaintiff hereby accepts the repudiation and the policy is rescinded” (para 12 Amended Statement of Claim). Damages for loss of future benefits were included in the prayer for relief.
7 By a Further Amended Statement of Claim the plaintiff expanded his pleading by asserting that the requirement that the insurer pay a monthly benefit was a condition of the policy, or alternatively an essential or fundamental term of the policy, or alternatively an intermediate term of the policy, and that the plaintiff was entitled to terminate the policy due to the failure of the insurer to make payments from 7 June 2000 onwards.
8 As the claim by reason of the amendments exceeded the jurisdictional limit of this Court, the insurer’s consent was required to extended jurisdiction and that consent was given: Exhibit “B”.
The Issues
9 The issues which arise are:
(1) Whether the plaintiff is unable to perform “any occupation for which he is reasonably suited by education, training or experience” within the meaning of clause 2 of the insuring clause, and relevant to this:
(a) are there limits on what occupation the insured can be required to perform; and
(b) must there be evidence of actual employment available?
(2) If the answer to (1) is yes, was the insurer’s failure to pay, a breach of the policy that entitled the plaintiff to terminate the contract of insurance?
(3) If the answer to (2) is yes – did the plaintiff elect not to terminate the contract of insurance for breach or repudiation and is he precluded by virtue of the election from seeking to recover damages for loss of the contract?
(4) In computing the amount due, if an amount is due, is the insurer entitled to deduct amounts received by the plaintiff for workers compensation and if so, what amounts?
(5) In computing the amount due for future payments, should that be relevant, how are those amounts to be calculated?
(7) On the question of repudiation – was the insurer’s refusal to make payments after May 2000 a decision lacking bona fides and if so is that relevant? If it is, has the plaintiff established a lack of bona fides on the part of the insurer?(6) In relation to issue (1), upon whom is the burden of proof placed, and did the cross examination of the plaintiff and other witnesses called in the plaintiff’s case go far enough to permit the challenge mounted by the insurer?
The Factual Background
10 The plaintiff was hospitalised as a result of the accident, which involved him being thrown from his bike when it collided with a peach tree forming part of an orchard. He remained in hospital for 16 days and for the first two days he was unconscious: see T24-T25. He suffered the following injuries:
(1) fractures to C5 and C6 (ie of the cervical spine);
(2) visual disturbances in his left eye;
(3) a brain haemorrhage;
(5) fractures to two teeth and one tooth knocked out.(4) open lacerations to his forehead;
(See Rehab One report, 22 February 1999, p 79 Exhibit “F”.)
11 The plaintiff has, it is agreed, lost vision in his left eye as a result of the accident.
12 At the time of the accident the plaintiff was 44 years of age and is now 54 years of age. He had commenced working in the family business at the age of 15. The family business had initially been an orchard business which the plaintiff and two brothers had taken over from their parents, but one of the brothers had seen an opportunity for the business to branch out into stock feed manufacture and distribution, and that had been successfully achieved. The plaintiff, who was one of the directors of the company operating the business, attended to the orchard side of the business in ways in which I shall describe, but he also had a significant involvement in the maintenance and repair of all of the vehicles used in connection with both sides of the business – forklifts, tractors and trucks – he would organise the priorities for repair and give instructions to the full time qualified mechanic on what needed to be done and in what order. Although not formally qualified as a mechanic, he assisted in work on these vehicles. He also would order spare parts and fertiliser. He would sometimes assist in the stock feed side of the business by helping bag feed and he would also drive a forklift. The stock feed plant and storage was located on the same property as the orchard and the workshop was located within the buildings on the property.
13 The plaintiff’s brother Charles was in charge of the orchard and was responsible for pruning and spraying, and the plaintiff’s brother Bill was in charge of the stock feed side, but when Bill died a manager was appointed for that side of the business.
14 The plaintiff’s role in the orchard was to lay irrigation pipes, pick fruit and supervise other pickers, plant fruit trees, inspect trees for blight, and check irrigation piping at the beginning of the season. He would also help in the bagging of fruit.
15 The plaintiff would also drive trucks in connection with the stock feed side of the business from time to time.
16 At the time of the accident, the plaintiff was suffering from insulin dependent diabetes, raised cholesterol and hypertension, which were controlled by medication: Rehab One p 79 Exhibit “E”.
17 The insurer does not dispute that the plaintiff suffered significant injuries in the accident, and indeed it paid the plaintiff two years of benefits pursuant to clause 1 of the policy. The insurer does not dispute that the plaintiff cannot perform all of the manual tasks which he could perform before the accident, but places emphasis on the fact that not all of the plaintiff’s pre-accident activities involved heavy physical labour.
18 The plaintiff gave evidence that:
(1) After the accident he tried to do some of the work that he had done before as a mechanic, but he could not do the heavy lifting required and could not look up at the truck or vehicle from underneath because this would cause him pain in his neck: T41-42.
(2) He had tried bending down to attend to the irrigation but this caused him dizziness: T42.25.
(3) He could not drive a forklift other than forwards because it involved a lot of turning around to look back and up – and his neck was too painful: T28 and T41.
(4) He had lost his truck licence, effectively because of his loss of vision in his left eye: T27.5-T28.
(5) He could not lift 50 kg bags (or anything like that weight) as he had done: T40.10.
(7) He has been doing some charity work since the accident, which consists of:(6) He did order parts for the mechanic after the accident: T43.10.
(b) collecting and delivering pies for charity – three hours at a time “every two weeks or so”. The boxes of pies weigh 8-10 kg and he collects them from the pie manufacturer and takes them to various charity centres using his utility: T44. His evidence was that after that he usually gets “pretty tired” and lies down: T44.51.(a) selling items in a religious charity shop from 10am to 3pm once a week: T43;
(8) Before the accident he was strong and robust – able to lift very heavy items (50 kg bags, brake linings, truck tyres) and a person who enjoyed his work (T29, T57) and was unrestricted by any ill health. He was able to actively play with his children and was very social (T29, T57).(10) He had left school at 15 years of age to join the family business and he had no other formal education.(9) Following the accident he had left the family business and purchased Arundel Park, an industrial property from which he earns rental income.
19 I have mentioned the loss of vision in the left eye (assessed at 90%: see pp 28 and 60 Exhibit “C”). There appeared to be initially some concern about brain damage or impairment but this was excluded subsequently: see Dr Ross Mellick pp 84-85 and 89 Exhibit “C”. The plaintiff was assessed as having 45% loss of sense of smell but no impairment of taste, and also some hearing loss which was not due to the accident and which does not affect his ability to converse and was not productive of any difficulty in the courtroom: Dr Carroll pp 46-47 Exhibit “C”.
20 Dr Darveniza in November 1999 described the plaintiff as having “quite marked limitation of all neck movements especially extension and flexion” (p 37 Exhibit “C”) causing “daily post traumatic headaches and fractures to the cervical spine, leaving him with chronic neck pain proportional to activity” and said (p 34 Exhibit “C”):
“It is now almost two years since the accident and his current disabilities must be considered permanent. In my opinion, he is fit for light sedentary duties in which he is relatively free to move about. There is no doubt that the injury and its sequelae have led to significant physical and economic loss”.
21 In February 2001 and September 2003 Dr Darveniza’s views remained unchanged and on 10 November 2005 he added “He is permanently unfit for duties requiring intact hearing, sight and sense of smell and duties requiring repetitive lifting, bending and stooping etc”: p 42 Exhibit “C”. In a report of 15 January 1999, Associate Professor Michael Fearnside, a neurological surgeon, said (p 52 Exhibit “C”):
“As a result of the motor bike accident on 30/12/97, Mr Camilleri sustained multiple injuries as detailed above.
Specifically, he sustained a severe injury to his neck with a rupture of the C5/6 disc resulting in some prolapse but not requiring surgery at the present time, fractures of the C6 and C7 spinous processes and a ligamentous injury at the C6/7 level.
The MRI scan in November did not reveal any evidence of myelomalacia.
When seen, I thought that he would be unsuitable for return to his work at the present time but it is as yet too early to offer a final comment as to being permanently unable to return to any form of work for the foreseeable future. I suggested that a program of physiotherapy and perhaps anti-inflammatory medications under the supervision of his family doctor would be appropriate.Clinically, he did have physical signs in the arms referable to the C5/6 level and this is consistent with the radiology and the mechanism of the accident.
He will be reviewed as necessary.”
22 In a report of 30 November 2000, Associate Professor Fearnside said:
“When Mr Camilleri was seen on 10.8.2000, it was almost three years (short three months) from the time of the accident on 30.12.97. Mr Camilleri’s symptoms have persisted with particular reference to his dizziness, headaches and neck pain. I think that his prognosis for improvement is poor. It is more likely than not that he will continue to experience symptoms related to his neck and head for the foreseeable future. By his report, he has not been able to return to work. Noting that he did have a heavy physical job, when I last saw him, he was unfit for his pre injury occupation.”
23 In a report of 28 June 2006, Dr Mellick said (p 85 Exhibit “C”):
“Certainly on the basis of the assessment made at the time of my examination of him I did not identify injuries of sufficient magnitude to render him unable to perform a wide variety of work in the familiar surroundings of his farm. For example, I would expect him to be able to perform supervising tasks without difficulty and I would not expect major limitations of his ability to do clerical work.”
24 In his report of 25 October 2005, Dr Drew Dixon said (pp 30-31 Exhibit “C”):
“In summary he was involved in an accident when riding his quad bike on a property at Maroota when he collided with a tree sustaining a head injury with loss of consciousness and a frontal laceration with fracture to the left inferior orbital margins and of the left zygomatic arch as well as fractures of the spinous process of C6/7. He had small occipital contusions and had traumatic optic neuropathy of the left eye with loss of vision. He has not been able to return to his work duties due to ongoing pain and stiffness in his lower back where he has aggravated lower lumbar spondylosis as well as persisting headaches which become severe from time to time.
He does not appear fit to do sustained manual work and remains permanently incapacitated.”He is totally disabled as he is unable to perform any occupation for which he is suited by education, skill and experience. It is noted that he has had a functional assessment with Work Solutions with reasonable tolerance for sitting and walking but it was noted that he had difficulty performing tasks requiring sustained cervical posture tasks such as stooping. …
25 The plaintiff has been extensively reviewed by work rehabilitation specialists including specialists retained by the workers compensation insurer, Commonwealth Rehabilitation Service. Mr Vincent De Giovanni, a Forensic Vocational Psychologist, of MECA Consultants, provided several reports. In his report of 8 September 2000, he noted that there was no cognitive impairment preventing the plaintiff’s return to the duties which he had undertaken prior to the accident. However he said (pp 11-12 Exhibit “C”):
“In general terms, the physical restrictions associated with Mr Camilleri’s injuries have already been determined as being significant enough to prevent him from carrying out the duties of a motor mechanic’s assistant and an orchard worker (see CRS Functional Capacity Evaluation report dated 15/1/99). In my opinion Mr Camilleri is fitted for work as either a truck driver or forklift operator on the basis of training and experience. However his loss of vision and neck restrictions indicate he is not unconditionally physically fit for such work in all situations.
While I believe other jobs can be identified for which Mr Camilleri is fitted by education given that there are still many jobs available that do not require any minimum level of formal education, he is not fit for those jobs by reason of lack of training and experience. …
Rehabilitation, if it covers the gamut of both physical and vocational rehabilitation, may provide a more positive outcome, although one could not guarantee that it would equip Mr Camilleri for work within his family company. The inference here of course is that he could be rehabilitated to be employable in positions outside of his family company. In such a case he would face the difficulties of prejudice by employers, to age and disability status. While one cannot be categorical in saying no-one would ever employ Mr Camilleri, it becomes less likely with increasing age and when compounded by physical injuries and lack of specialised skills in fields of high demand.”Objective psychological testing indicates that Mr Camilleri has the capacity to enter into physically appropriate employment at his level of education, with only on-the-job training. Professional intervention by way of rehabilitation would be necessary, and in my opinion Mr Camilleri is not totally unemployable if new fields of employment are considered. These may not necessarily be within his family business as it may not have the necessary diversity to accommodate his needs, unless it were a job that had been specifically modified for him. Under [these] circumstances the job would fail to meet the criteria of being commonly available or occurring. …
26 In his supplementary report of 8 September 2000, Mr De Giovanni said (pp 15-16 Exhibit “C”):
“Based on education alone, Mr Camilleri can perform only those jobs that require no minimum level of education. The bulk of these comprise lesser skilled labouring or heavy manual occupations. At this time (and indefinitely) they are contra-indicated by his physical capacities as medically and paramedically determined.
Based on training alone, Mr Camilleri has had no formal training and has no qualifications and is therefore not suited or eligible for any occupation requiring a qualification to substantiate completion of a formal training course. He has had informal training (although this is not specified as a criteria), however this has been in aspects of agricultural labouring and semi-skilled mechanical work which have, again, been medically and paramedically assessed as unsuitable in light of his physical injuries.
Mr Camilleri’s position appears clear and unequivocal when considered against the separate criteria. However if [by] “suited by education” one also means the capacity to acquire appropriate work skills through training; or experience; or to acquire experience following training not currently held, then I believe Mr Camilleri has retained some capacity to acquire a limited range of skills through informal retraining and experience. However these skills would not be related to, or available from within, his family businesses; and his eventual success in actually finding his work while not impossible, would be marginal at best in view of his age and his disability status.”Mr Camilleri’s work experience is within the same areas he has acquired informal training, and the conclusions in respect of that training apply here also. The only exceptions are truck driving and forklift operating in which he has experience and the necessary licensing. However here again his physical ability to perform either of these occupations remains questionable at best. While he is cognitively capable based on my objective assessment, medical and paramedical opinion does not support either option.
27 The CRS examined the plaintiff and provided a Functional Capacity Evaluation Report (pp 7-10 Exhibit “4”) as at 15 January 1999, concluding that he was unable to return to his previous duties “at this stage”, recommending various steps be taken including the taking of anti-inflammatory medication, which it noted he was not taking: p 10.
28 The insurer’s medical evidence consisted of three reports of Professor Robert Oakeshott, three reports of Work Solutions (rehabilitation specialists), and a report of Dr Frank Machart of 8 December 2005: see Exhibit “4”.
29 Dr Machart was of the view that cervical spine injury of the type suffered “is not likely to cause disabling symptoms such as headaches, dizziness or significant or constant neck pain 8 years after injury”: p 44 Exhibit “4”. In his view, in respect of bony injury to the cervical spine the plaintiff “would have recovered sufficiently to return to normal work unrestricted”: p 45 Exhibit “4”.
30 Professor Oakeshott notes that the plaintiff did on examination “demonstrate reduced movements of his neck” and does “complain of dizziness when bending downward or getting up from a sitting or lying position”. Professor Oakeshott considered the dizziness to be related to blood pressure and not to any injury arising out of the accident. He noted that the restricted neck movements were “not associated with any significant discomfort”: p 53 Exhibit “4”. He further noted that:
“There are degenerative changes in his neck and lumbar spine which I consider are age related and not injury related which could cause intermittent discomfort in either his neck or lower back.”
and at p 54:
“ Work ability
Following my clinical examination at today’s consultation, I consider that if he was strongly motivated to return to work then he would be able to return to the work that he was performing prior to the above accident.
It is to be noted that he has returned to driving.I believe that he could ride his quad bike and could attend to the irrigation system in the orchard. I believe that he could maintain such an irrigation system.
In view of the degenerative changes in his neck and back, he should maintain a reasonable level of physical fitness and back strength and flexibility with appropriate exercises and diet if he is to avoid putting on too much weight.
There is no medical reason why he should not be able to perform at this level. However, his performance, I consider, will be largely related to his motivation to perform this level of work.”Providing he adheres to the usual Occupation Health & Safety Guidelines for the type of work that he has been doing, I believe that [he] would be able to do most of his pre-accident duties without any significant difficulties.
31 Professor Oakeshott noted that the plaintiff was not taking any medications in relation to injuries suffered in the accident, did not require further investigations, did not require surgical consideration nor did he anticipate any significant deterioration or improvement of the injuries (p 55 Exhibit “4”). He then said:
“If motivated, I believe that he could work full time. There is no medical reason why he should not return to full-time work, as discussed above.
11. I believe that the main reason for his inability to work is his motivation and attitude to returning to full-time work. He certainly did not give me the appearance at today’s consultation that he was keen to return to work.
In other words, I consider that he is not totally disabled from work.”Apart from the above, I could not identify any medical reason why he should not return to appropriate work, as discussed above.
32 Work Solutions’ Ms Nicole Tallon reported (pp 39-40 Exhibit “4”):
The assessment results have been analysed and Mr Camilleri was counselled with regard to the following employment options. –“ VOCATIONAL OPTIONS
· Supervisor – machinery/vehicle maintenance and repair
· Truck Driver
· Gardener
· Machinery Operator
· Employment opportunities – Mr Camilleri is the director with his 2 brothers of his family farm operating in Stock feed supplies (factory) and orchard
POTENTIAL BARRIERS TO A RETURN TO WORK
· Mr Camilleri has a number of significant injuries and physical restrictions, which would impede him from fulfilling all of his pre injury duties. However Mr Camilleri has the capacity as director of his company to accommodate his restrictions in a return to work program.
· Mr Camilleri does not have the physical capacity to operate machinery safely when considering his reported symptoms of vertigo and loss of eye sight to his left eye as well as his reported headaches which have the potential to reduce the required concentration necessary to fulfil this position safely.
CONCLUSION/RECOMMENDATIONS
· Mr Camilleri did not present as motivated towards returning to work. When directly asked if he wanted to return to work in his company he stated that he does not have the “confidence” to return to work. It is anticipated that Mr Camilleri has the capacity to fulfil certain duties of his pre-injury position as well as other potential duties within the operation and management of a farm comparable to that of his family farm. It is recommended that an updated workplace assessment be conducted. Commonwealth Rehabilitation Services (CRS) conducted a workplace assessment on the 21st May 1999 restricting this assessment to his pre-injury employment duties only. An updated assessment could be conducted to assess any potential duties compatible with his restrictions within the entire organisation given his director status within the company.
· With regards to consistency regarding Mr Camilleri’s pre-injury employment, he reported filling a number of positions however his predominant responsibility was to manage the maintenance of transport vehicles and machinery which included transporting stock as required.
· Mr Camilleri may be restricted to part time work, which will be assessed at the time of the functional assessment.
When considering Mr Camilleri’s age, aptitude, transferable skills and physical restrictions it may be concluded that Mr Camilleri would have difficulty finding work in the open Labour market. However, given his position and part ownership of his farming business it can be concluded that Mr Camilleri could return to work in some capacity if motivated. It is recommended that a full workplace assessment, other than just his pre-injury position be carried out. Mr Camilleri may require support and functional education relating to potential duties, which would be identified through this workplace assessment.”
33 It would appear therefore on the basis of the various medical reports that there are significant questions concerning the veracity of the plaintiff’s reporting:
(1) Is he really suffering from significant restriction in neck movement?
(2) Is restriction in neck movement accompanied by pain?
(3) Is he really suffering from headaches?
(4) Does he really wish to return to work even if able to do so?
(5) What was the real nature of the main work that he was performing prior to the accident and to what extent was it physical and to what extent managerial?
(7) Is the absence of a report from Dr Percy, his treating general practitioner, indicative of a lack of foundation for the plaintiff’s claims?(6) Was he exaggerating his physical symptoms when seeing Professor Oakeshott? (See p 52 Exhibit “4”.)
34 None of the authors of the medical and vocational reports were required to attend for cross-examination. Neither of the defendant’s doctors were called to comment on the evidence led from the plaintiff about his condition.
35 Mr Hale made the point that there was no challenge made to the credibility of the plaintiff during cross-examination and he submitted that it was not open to the defendant to now make challenges to the veracity of the plaintiff. There was a challenge to the plaintiff’s evidence on the question of how much work he could do per week (T5 18/7/06 and see also T7-8 18/7/06), and how much he could move his neck (T7 18/7/06 and T14), but there was no clear challenge to the witness that something he had said previously or in court was false or exaggerated. Mr Hale relied on the rule in Browne v Dunn (1893) 6 R 67, which was explained by Hunt J (as he then was) in Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1.
36 The defendant insurer (see paras 5-8 of its submissions in reply) contends that the absence of any direct assertion that the plaintiff or Mrs Camilleri were not telling the truth does not permit the Court to disregard the medical evidence:
“6 … It is the Defendant’s case that the Plaintiff and Mrs Camilleri, to a certain extent, exaggerated the level of disability.
8 The Plaintiff’s oral submission that this is not a case about medical evidence is surprising. The Plaintiff bears the onus of establish that, because of injury or illness, he is disabled within the definition. He can only establish the causal nexus between the injury and the level of disability through medical evidence.”7 The Defendant traversed this by suggesting that the Plaintiff’s restriction of movement as early as 1998 was significantly less than he complained in the witness box, relying on medical reports which suggest a lesser restriction of movement and putting propositions to the Plaintiff in respect of activities which would seem to be inconsistent with the Plaintiff’s evidence, i.e. loading and unloading the back of a car with boxes of meat pies on a fortnightly basis, driving the ride on mower every week for 3 hours, doing the gardening, sweeping, etc. The Defendant is not in a position to know when, if at all, or how often the Plaintiff might leave concerts early or lie down inside his own home. These are matters which a Defendant can never directly attack as the Defendant was not there. The Defendant can only put the general proposition which it seeks to assert, i.e. that there is a degree of exaggeration in the level of disability, and back it up with examples. The Court would then assess all of the evidence, including the medical evidence.
37 At 22-23 of Allied Pastoral, Hunt J said:
“A challenge made to the evidence of a witness in the course of a final address may take place in various ways. The opposing party may ask the tribunal of fact simply to disbelieve that evidence; if he has led evidence in direct contradiction of the evidence of that witness, he may then ask the tribunal of fact to accept the evidence of his own witnesses in preference to that of the witness in question; or he may point to other evidence in the case, led by either party, which tends either to contradict the evidence of that witness or to destroy his credit. There are many reasons why it should be made clear, prior to final addresses and by way of cross examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based. It is this third reason for the application of the first rule in or aspect of Browne v Dunn which is applicable in the present case.”
38 Mr Cavanagh never put to the plaintiff that what he had told the doctors examining him about his physical problems was exaggerated or false in any respect. Nor did he put to the plaintiff that what he now said was, in the light of what he had previously told doctors and the hospital staff, false or exaggerated. To the extent that the plaintiff made admissions, for example that he did collect and deliver pies three hours a week, that is evidence on which the insurer is entitled to rely, but the question is whether the defendant’s submissions can go further than that.
39 Professor Oakeshott’s report notes a different presentation at the commencement of the interview and that at the “formal part” of the examination. He finds degenerative changes in the plaintiff’s neck and lumbar spine which he considers are age- and not injury-related, and which “could cause intermittent discomfort in either his neck or lower back”, but he regards lack of motivation as the reason for the plaintiff’s failure to return to work: p 54 Exhibit “4”. He expresses the view that the plaintiff “could ride his quad bike and could attend to the irrigation system in the orchard. I believe he could maintain such an irrigation system”.
40 The introduction to the report does not describe any detail of maintaining the irrigation system, so it is not clear precisely what physical activities Professor Oakeshott thinks are involved, nor is it clear which of the pre-accident duties he thinks the plaintiff would not be able to perform when he says “I believe that [he] would be able to do most of his pre-accident duties without any significant difficulties”.
41 It is clear that Professor Oakeshott regarded the problems as motivational, and the very limited attempt by the plaintiff to return to work gives some support to that conclusion. An expert report can be couched in such terms as to make clear to a plaintiff that his assertions of injury, illness and incapacity are challenged, and the basis for that challenge is made clear so that the plaintiff is on notice of the attack made of his or her position, there may be no requirement for cross examination to ensure compliance with the rule in Browne v Dunn (see “Cross on Evidence” at [17445], Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 224-5; Porter v OAMPS Ltd (2004) 207 ALR 635; [2004] FMCA 272 at [12]), which after all is a rule of fairness to enable the witness to know what the attack is, and on what it is based: see Allied Pastoral at 16D-E.
42 The lack of specificity that I have identified in Professor Oakeshott’s report leaves uncertainty: is Professor Oakeshott saying that the plaintiff can bend and squat in the course of attending to irrigation duties; is he saying the plaintiff can drive a forklift without difficulties; is he saying the plaintiff can drive a semi trailer and can lift heavy bags, tyres and truck parts? When the plaintiff gives evidence that he cannot do these things and also evidence that undermines the proposition that he is not unmotivated, is the defendant saying that that evidence should not be accepted and if so, on what basis? These uncertainties I think highlight the need for cross examination to ensure compliance with the rule in Browne v Dunn. In any event, the plaintiff appeared to me to be straightforward and honest in giving his evidence. I do not think he was shown to have said anything that was false either to this Court or on some earlier occasion. I therefore proceed on the basis that the plaintiff’s evidence, unless it is demonstrably erroneous by reference to some other item of evidence, ought be accepted. I accept the plaintiff’s sworn unchallenged testimony as to his limitations, which coupled with the reports of Dr Darveniza, Associate Professor Fearnside and to some extent Dr Dixon, establishes on the balance of probabilities that the plaintiff has considerable restriction in the movement of his neck brought about by the accident on 30 December 1997, which impacts on his ability to perform the menial tasks in which he was engaged prior to the accident. Mr Hale also argued that I should pay no regard to Professor Oakeshott’s report on the basis that it infringed the requirements of an expert report (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 and ASIC v Rich (2005) 218 ALR 764; [2005] NSWCA 152 at 793-4) because it did not make clear the basis of its conclusions. I think that the matters to which I have just referred, even if they do not lead to rejection of Professor Oakeshott’s report, do restrict the weight of it. Dr Machart’s report which offers a view of what is to be expected following injuries of the kind undoubtedly suffered, is contradicted by the plaintiff’s experts and whilst it may provide a basis for doubting long term limitations it does not overcome the plaintiff’s evidence if his evidence his accepted.
43 I do not agree with Mr Cavanagh’s submission (DS36) that the findings of Dr Machart and Professor Oakeshott are consistent with those of Associate Professor Fearnside. Nor are they consistent with those of Dr Darveniza. I agree that Dr Dixon’s assertion that the plaintiff was asserting inability to return to work due to pain in the lower back is somewhat at odds with other reports, but Dr Dixon did not limit himself to that: see passage set out at [24] above.
44 The plaintiff was reported by Ms Tallon as having told her that his pre-injury activities were (p 36 Exhibit “4”):
“Mr Camilleri reported working on his family farm/orchard since the age of 15 years. Mr Camilleri held labouring positions in market gardening, orchard and stock feed. He held the position responsible for truck and machinery operation, maintenance and repair for the majority of his working life. This included ordering parts and working on machinery and vehicles within the business. Mr Camilleri was also responsible for ensuring the safety standards and registration requirements were met for all machinery and vehicles within the company.”
45 Ms Tallon noted (p 37 Exhibit “4”):
“ TRANSFERABLE SKILLS
· Mr Camilleri has restricted transferable skills having worked predominantly in a labouring capacity on his family’s farm/orchard.
· Mr Camilleri has mechanical skills. He has no formal qualifications in this area. Mr Camilleri has extensive experience in maintaining and repairing the company’s trucks and machinery.
· Mr Camilleri has extensive orchard, stock feed and market gardening experience and knowledge.
· Mr Camilleri has ordering experience having been responsible for ordering parts for the machinery and trucks.
· Mr Camilleri has supervisory skills and practical “paper work” experience ensuring safety standards and registration of machinery and vehicles are maintained.”
The Policy
46 The application for cover contained the following questions and answers:
“ A. Principal occupation
Market gardener + stockfeeds carrier.
…
E. Nature of business
Stockfeed manufacture
Protein recovery
F. Please describe the specific duties of your occupation ( what you do day-to-day )
Picking and packing tomatoes or peaches, delivery of produce to market also delivery of meal to various clients.
G. How many hours per week do you work?
65
H. Does your occupation involve manual work?
Yes.
90%.”Percentage of time
47 The insurance schedule indicated that benefit period for injury was “Life-time”. The policy contained relevantly the following provisions:
“2. If the person insured is totally disabled, we will pay you the monthly benefit. The person insured is totally disabled if:
during the first 2 years of total disability, because of an injury or sickness, he or she is unable to perform at least one income producing duty of his or her occupation;
after the first 2 years of total disability, because of the same injury or sickness, he or she is unable to perform any occupation for which he or she is reasonably suited by education, training or experience ;
he or she is not working; and
3. If the person insured has been totally disabled for 14 days and then returns to some paid work – but he or she is partially disabled – we will pay you a reduced monthly benefit. However, you will not be entitled to be paid before the end of the waiting period.” [emphasis added]he or she is under the regular care and attendance of a medical practitioner . …
A formula is then set out – it is not relevant.
“ Meaning of partially disabled
The person insured is partially disabled if, immediately after being totally disabled for at least 14 days, he or she is able to perform one or more duties of his or her occupation, but not all of them, or is working in another occupation, and – because of the disability – the amount the person insured earns for the work he or she does is less than the amount of his or her pre-disability income .
The person insured must be under the regular care and attendance of a medical practitioner .”
“9. We may reduce your benefit by any amount which is paid under legislation for the injury or sickness you are claiming for under this policy.
We will only reduce your benefit in this way if the amount paid under legislation, plus the benefit payable to you under this policy, total more than 75% of the person insured’s pre-disability income . If this applies, we will reduce the benefit to an amount which, when added to the amount paid under legislation, equals 75% of the person insured’s pre-disability income . However, we won’t pay more than the benefit.
Please note, we won’t reduce what we pay you by any amount received from other sources, such as other income protection policies, superannuation benefits or from social security.
Lump sum payments
“21. You can end this policy at any time. If you cancel it in the first 14 days, you get your money back. If you cancel it after the first 14 days, you don’t get your money back.”If the amount under legislation is paid as a lump sum, we will only reduce what we pay you by the portion of the lump sum which relates to income.”
48 There were some exclusions to cover under the policy (low back and right hip) but significantly no point was taken by the insurer about these exclusions. Nor was any point taken concerning the need for the insured not to be working and to be under the regular care and attendance of a medical practitioner.
49 The words “occupation for which [he] is reasonably suited by education, training or experience” give rise to some difficulties:
(1) What is an occupation for which the plaintiff is reasonably suited by education, training or experience?
(2) Does this mean on a full time basis?
(4) Does the insured have to re-train?(3) Does the insurer have to prove that work is available in that occupation nominated?
50 Some of the controversy in this case stems from the fact that the plaintiff was, for many years, a director of (and effectively a partner in) a successful family farming operation that had approximately 30 employees and a large turnover, but his evidence was that he performed largely menial tasks in that operation – tasks which involved bending and quite heavy lifting and which now, if his evidence is accepted, he cannot do. His brother Bill, and then an employed manager, managed the stock feed side of the business. He described himself, in the proposal, as spending 90 percent of his work on menial work (see p 2 Exhibit “A”), although in his claim form he said under “Occupation and duties”, “company director/peach farming/stock feeding business. Involves administration and physical work”: Exhibit “2”. He has, I accept, lost his license to drive heavy vehicles due to loss of vision in one eye and he has problems driving a forklift because of his neck. He has sold his interest in the business and purchased an income producing property. The administration of which he gave evidence was ordering parts for vehicles, and he had some supervisory role in the motor workshop, which had only one other employee, a licensed mechanic.
51 Mr Cavanagh argues that the insurer does not have to prove that work is actually available for the plaintiff. The sole question, he submits, is whether the plaintiff is unable to perform any occupation for which he is suited and the onus of establishing that he is not able, lies upon him.
52 I make some preliminary observations. The clause does not say “unable to perform any occupation” but rather unable to perform “any occupation for which he or she is reasonably suited by education training or experience”. A man with no formal education and employed as a station porter who is physically injured is not suited to undertake work as a computer programmer even though physically he could perform that work. A barrister who is unable to work as a barrister due to significant mental impairment is not suited by his education training or experience to work as a station porter even though physically he could work at that job. These are rather obvious examples and there must be grey areas. In this case, one question which has arisen is whether the plaintiff could as a result of his experience in the workshop, work as a manager of a fleet of vehicles. I shall return to that point.
53 Secondly, the fact that he might have been able to work in the family business in a limited role that could not be sustained elsewhere would not establish that he is able to work full-time.
54 Mr Cavanagh emphasised in his submissions that the obligation on the insurer to pay until the plaintiff’s death was a very onerous one – this he said was relevant to the very strict requirements for total disability. He argued at one point that the plaintiff might fall within the definition of partial disability (for which there was no claim) but did not meet the requirements for total disability. The plaintiff did not return to paid work so clause 3 under the portion dealing with total disability does not apply.
55 Whilst the definition of total disability may assist in concluding that the definition of partial disability was intended to include part time work, the corollary of that conclusion is that total disability focuses on ability to work full time.
56 A number of cases were relied on by the parties in connection with the interpretation of the “total disability” clause: Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175; Walton v Colonial Mutual Life Assurance Society Ltd (2004) 13 ANZ Ins Cas 61-620; [2004] NSWSC 616; Constantinides v Du Pont Superannuation Fund Pty Ltd (2002) 68 ALD 664; [2002] FCA 534; Wiley v Board of Trustees, State Public Sector Superannuation Scheme (unreported, SC(Qld), White J, 3/4/1997, BC9701020); Riley v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-684; Szuster v Hest Australia Ltd (2000) 207 LSJS 35; [2000] SADC 2.
57 In Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175, which concerned an employee in a retirement fund, the question of disablement, to be decided by a trustee in its absolute discretion, was whether the employee was “incapacitated for further employment”. Hodgson J was of the view that the employment in question was not limited to employment with the particular employer but was limited to full time employment, “and to employment which is reasonably open to the member”, ie employment “which the member is capable of undertaking, having regard to his education, experience and training, or at least employment which he could become capable of undertaking with further training which it would be reasonable for him to undertake”: at 77,999. The claim form used that form of words and Hodgson J said at 78,000:
“I think those words sufficiently indicate that the relevant employment is full-time employment , and that the question is not merely incapacity to engage in some theoretical employment, but actual likelihood of obtaining employment . And the reference to reasonable qualification, I think, appropriately encompasses the requirement that the employment should be something that the member is capable of undertaking.” [emphasis added]
58 There are some cases in which the particular wording used to define the condition upon which benefits are to be paid has been treated as not requiring full time occupation: Szuster v Hest Australia Ltd (2000) 207 LSJS 35; [2000] SADC 2; H v First State [2003] NSWIR Comm 293, with Chammas being distinguished.
59 Here the express wording in the policy is the same as the wording Hodgson J read into the disability definition. The clause makes no reference to “part-time” and further occupation is qualified as one “for which he or she is reasonably suited by education or training or experience” and a full time occupation is what the insured is suited for as demonstrated by the proposal. Although the context is different, I think that the approach taken in Chammas to interpretation is relevant to the present problem and I respectfully adopt that approach here.
60 Constantinides v Du Pont Superannuation Fund Pty Ltd (2002) 68 ALD 664; [2002] FCA 534 and Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325 demonstrate that “unable to perform any occupation” is more stringent than “unlikely”, and “permanently unable” is more stringent than “unable now and for the foreseeable future”: see Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82. I think “unable to perform any occupation” is similar to “incapacitated for further employment” and I accept that the phrase “unable to perform any occupation for which he or she is reasonably suited by education training or experience” imposes a stringent test. I also accept that it is not sufficient for an insured to establish that he is not now capable of performing the tasks that he was performing prior to the accident, but inability to perform those tasks will be of relevance to determining whether he is unable to perform any occupation for which he is suited if those tasks are a normal part of the occupation or one of the occupations for which he is suited.
61 In Alessi v National Mutual Life Association of Australasia Ltd (1982) 2 ANZ Ins Cas 60-481 Wickham J, in considering the claim of a carpenter who had become a roofing carpenter and whether he was wholly prevented “from engaging in his occupation or any similar occupation or any other occupation for which he [was] fitted by his knowledge, training, status and abilities”, said:
“I do interpret the clause in the policy as applying not merely to any ability to do any kind of work at anything but, in the case of this insured, to relate to him being prevented from carrying on any occupation which his abilities allow him to carry on, having regard to his knowledge, training and status as a carpenter and, specifically, as a roofing carpenter. I would, however, conclude that it would not be sufficient for the plaintiff to show merely that he was not able to carry on as a roofing contractor unless he also showed that he was not able to carry on some kind of occupation generally related to that of a carpenter”.
I think this passage points to the need for the alternative occupation to have some relationship with the occupation previously undertaken, or for which the insured had been trained.
62 In Walton v Colonial Mutual Life Assurance Society Ltd (2004) 13 ANZ Ins Cas 61-620; [2004] NSWSC 616, Einstein J had to consider an income protection life insurance policy, which he noted was in many ways akin to a sickness and accident policy. His Honour set out the relevant principles of construction which I paraphrase and from which I omit the cited authorities and respectfully adopt:
(1) The contract of insurance is to be construed as a whole.
(2) There is a presumption capable of rebuttal that the words in the contract of insurance have to be given the ordinary and natural meaning as understood by the ordinary reasonable man.
(4) In the case of all disability policies of insurance the definition of disability must be carefully examined, as they vary greatly in their effect.(3) Ambiguity in the language is usually resolved in accordance with the “contra proferentem” principle but this rule only operates where the words are truly ambiguous.
63 To these principles can be added the need to give a business-like interpretation to a policy of insurance which “requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure”: per Gleeson CJ in McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65 at [22], approved in Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 at [15].
64 In Walton, the relevant definition of total disability required the insured to “be unable to perform the Important Duties of your Occupation”. His Honour noted at [19] that the onus of proof rested on the insured, who had to prove that he was unable to perform one or more of the important duties of his occupation and that that led to diminution in income.
65 The written submissions lodged by the insurer highlight limits in the plaintiff’s medical evidence and note that “the medical evidence does not support the level of disability complained of by the plaintiff in the witness box” (para 40). The submissions draw attention to the fact that the plaintiff’s medical reports focus on the plaintiff’s inability to work as a truck mechanic’s trade assistant with some unrelated farm hand duties (para 42), and establish that the plaintiff “could not perform sustained heavy physical work”. I set out para 46 of the defendant’s submissions:
“The Plaintiff agreed in cross-examination that he could undertake courier work. He agreed in cross-examination that he could undertake light delivery work, although he sought to limit that to a number of hours per week. The Plaintiff has experience managing a business. The Plaintiff has not sought employment of any type. The restrictions set out in the Plaintiff’s medical reports do not suggest that the Plaintiff is unfit for all forms of work. The Plaintiff’s medical evidence does not establish that the Plaintiff is unable to perform any occupation for which he is suited. Whilst the Defendant does not submit that he need establish that he is unfit for all forms of work, he bears the onus of establishing that he is unable to undertake any occupation for which he is reasonably suited by education, training or experience. He has not called any medical evidence to establish that he is, has been since 2000 or will be in the future unable to undertake work such as that of a courier driver, delivery work, other driving work (driving light vehicles), managing a workshop, working in a supervisory or administration role in a factory, working in a car park or the wide range of occupations that do not involve heavy lifting or sustained manual effort. As such, the Plaintiff has not established that he is unable to undertake any occupation for which he is reasonably suited by training, education or experience.”
66 The oral evidence called on behalf of the plaintiff (other than in respect of courier work to which I shall return) is unhelpful to the defendant’s case. The fact that the evidence goes beyond what was reported to doctors, if it be the fact, may be relevant on the issue of credibility and could well have founded extensive cross examination but it did not. The extent to which the plaintiff’s role as manager of the workshop was consistent with his working as a mechanic’s assistant and performing menial tasks was not the subject of any challenge. Mr Neale, a licensed mechanic employed in the Camilleri Stockfeeds workshop, did agree that the plaintiff was his “boss” but did not give evidence that contradicted the extensive physical aspect of the plaintiff’s work. The written submissions do seek to argue the matter as one of onus – and to argue that the plaintiff has not established on the balance of probabilities that he has been unable since 2000 to undertake any occupation or that he will be unable to do so in the future. I accept that the question is not whether he can work in the business in which he used to work but whether he has the capacity to perform in any occupation for which he is reasonably suited.
67 The plaintiff in his evidence in chief stated that much of his work in the workshop was physical work (see T21-T23) and none of that evidence was challenged.
68 The plaintiff’s evidence that he is carrying out courier work on a part time unpaid basis certainly points to his ability to do some part time work on a paid basis, but again accepting his evidence, the hours per week are quite limited.
69 There were certainly some aspects of his evidence which seemed potentially to found what appeared to be the defendant’s concerns as to the genuineness of the plaintiff’s condition, for example the absence of any medication for the headaches and neck pain, the absence of any consultations since 2000 for any treatment, the absence of physiotherapy, the limited attempts to return to work, and the evidence of what is recorded as having been said at Westmead Hospital. I thought that the plaintiff’s wife tended to exaggerate the extent of her husband’s limitations beyond what the plaintiff himself described, but her evidence was challenged in only a limited fashion. If the plaintiff’s evidence is accepted as truthful however then he cannot return to most of the physical work that he was doing before the accident and the non-physical work was quite limited and would not on the balance of probabilities be sufficient to support a full time job. The vocational experts seemed to agree on the difficulty of the plaintiff obtaining full time work on the open labour market in a non-physical role.
70 Taking into account both the medical and vocational reports and the evidence of the plaintiff and other witnesses called on behalf of the plaintiff, which corroborated his evidence, I am not satisfied that the plaintiff could not obtain employment on a part time (albeit limited) basis in some capacity for which he is suited, either assisting in farm management or in relation to management of a fleet workshop or as a courier, but I am satisfied on the balance of probabilities, having regard to his age, his restrictions of movement, inability to bend and lift, his experience of pain, and difficulties consequent on that pain, his inability to drive large trucks, difficulties in driving a forklift and extensive driving of light vehicles and even in inspecting vehicles, that he is unable to work on a full time basis in any occupation for which he is suited as a result of the accident, and I am satisfied that a full time role in a farm management role suitable to his experience, but without the need for extensive physical exertion, is unlikely to be available to him.
114 It follows in my view that the plaintiff is entitled to all of the unpaid monthly instalments to date, less any amounts received, but not to any amount for future instalments.
Conclusion
115 It follows that the plaintiff is entitled to all of the monthly payments from June 2000 to date less the amount of $105,000, being a portion of Workers Compensation payments received on 12 April 2001. That amount should be calculated as an up-to-date figure and with interest and short minutes brought in at a time to be fixed.
Costs
116 I shall hear the parties on the issue of costs.
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