Colella v Hannover Life Re of Australasia Ltd
[2013] VCC 620
•17 June 2013
31
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-00664
| CESARIO COLELLA | Plaintiff |
| v | |
| HANNOVER LIFE RE OF AUSTRALASIA LTD (ABN 37 062 395 484) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20, 21, 22, 25, 26 February 1 March 2013 | |
DATE OF JUDGMENT: | 17 June 2013 | |
CASE MAY BE CITED AS: | Colella v Hannover Life Re of Australasia Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 620 | |
REASONS FOR JUDGMENT
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Subject: TOTAL AND PERMANENT DISABLEMENT INSURANCE CLAIM
Catchwords: Plaintiff a member of a superannuation fund with total and permanent disablement benefit – whether plaintiff unable to do any work as a result of injury for six consecutive months – whether plaintiff had capacity for “other occupation” for which he was qualified by education, training and experience after expiration of six months.
Cases Cited: Ivkovic v Australian Casualty & Life Ltd [1994] 10 SR (WA) 325; Sayseng v Kellogg Superannuation Pty Ltd & Anor [2007] NSWSC 583; Nile v Club Plus Superannuation Pty Ltd & Anor [2005] NSWSC 55; Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175; Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd (2011) 282 ALR 167; QBE Insurance Ltd v Jande [1994] NSWCA 366; Giles v National MutualLife Association of Australasia Limited (1987) 4 ANZ Ins Cas 60-751; Cavill Power Products Pty Ltd v Royle (1991) 42 IR 229; Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214
Judgment: For the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Bingham | Maurice Blackburn |
| For the Defendant | Mr D Christie | Moray & Agnew |
HIS HONOUR:
Preliminary
1 The defendant, Hannover Life Re of Australasia Ltd (“Hannover”), was at all material times a life assurance company.
2 Relevantly, the plaintiff, Mr Colella, was employed as a despatch manager with a company, Carter Holt Harvey (“CHH”), which was involved in paper and cardboard production and distribution.
3 As part of a superannuation policy (“the policy”) undertaken through his employment, the plaintiff was entitled to a total and permanent disablement (“TPD”) benefit as part of the policy. In order to be entitled to that benefit, it was necessary for the plaintiff to satisfy two criteria:
(a) that he was unable to do any work as a result of injury for a period of six consecutive months; and
(b) at the end of that six-month period, he continued to be so disabled as, in the opinion of Hannover, to be unable to resume his previous occupation at any time in the future, and unable to perform any other occupation.
4 The plaintiff left his employment with CHH in April 2007 as a result, he claims, of a significant right knee injury which so disabled him that he satisfied each of the criterion under the policy.
5 While Hannover accepts the plaintiff has a significant right knee condition, it alleges the plaintiff does not satisfy either of the criterion under the policy, and is not entitled to the benefit.
The Pleadings
6 Initially, the plaintiff brought his proceeding naming ING Custodians Pty Limited as first defendant, Hannover as second defendant and ING Life Limited as third defendant. ING Custodians Pty Limited was the trustee of the superannuation fund. The third defendant was another insurance company. The plaintiff has discontinued against the first and third defendants.
7 According to his Amended Statement of Claim,[1] the plaintiff alleges:
[1]Court Book (“CB”) 1-29
· The terms of the TPD aspect of the policy provided an amount of $160,000 would be payable should he become totally and permanently disabled.
· The plaintiff was absent from work through injury for six consecutive months.
· The plaintiff left his employment on the grounds of being totally and permanently disabled within the meaning of the policy.
· At the end of that six-month period, the plaintiff was so disabled that Hannover ought to have formed the opinion that he was unable to resume his previous occupation at any time in the future and would be unable, at any time in the future, to perform any other occupation within the meaning of the policy.
· On five separate occasions, the plaintiff made a claim upon Hannover and provided medical and other evidence such as to be entitled to receive the TPD benefit.[2]
[2]Claims were made on 21 April 2008 (“the first claim”), 3 April 2009 (“the second claim”), 16 June 2009 (“the third claim”), 20 April 2011 (“the fourth claim”) and 16 March 2012 (“the fifth claim”).
· Each decision of Hannover to reject the various claims was not valid and, in so doing, Hannover was in breach of the terms of the policy and further in breach of the duties it owed under the policy.
· In the premises, the plaintiff claims the decisions of Hannover ought be declared void and of no effect and in lieu, the Court ought to determine whether the plaintiff meets the criteria of TPD.
8 In its Amended Defence,[3] Hannover admits the policy and the terms as alleged, but says:
[3]CB 31-41
· The plaintiff left his employment as his working hours interfered with his ability to work on his hobby farm.
· As at the date he left his employment, 20 April 2007, he was not “unable to do any work as a result of … injury for six consecutive months” in accordance with the definition contained in the policy.
· Its determination to refuse payment of the TPD benefit, and its denial of the various claims, was undertaken in accordance with the terms of the policy.
· It denies the plaintiff is entitled to any TPD benefit.
The Terms of the Insurance Policy
9 “Total and permanent disablement” is defined in Clause 1.3 of the policy as:
“1.3 A person suffers total and permanent disablement if they:
are unable to do any work as a result of injury or illness for 6 consecutive months and at the end of the 6 months they continue to be so disabled that he or she is in our opinion unable to resume their previous occupation at any time in the future and will be unable at any time in the future to perform any other occupation. … .”
10 “Other occupation”:
“… means any occupation the person is qualified to perform by their education, training or experience at the time we assess the claim and includes:
· part time occupations; and
· an occupation which may be perceived by the person to be of lower status than the person’s previous occupation or an occupation in which the person does not earn as much income as they did in their previous occupation.”[4]
[4]Glossary – CB 73
11 Clause 6.1 provides:
“6.1The cover for an Injured Person under this policy ceases when … the injured person:
(a)has been absent from the active performance of the duties of their employment for a period of 30 days, other than during a period of temporary absence.”
12 Clause 2.1.4 provides:
“Cover will continue in respect of an Injured Person who is absent from work due to injury or illness provided:
· the Injured Person remains employed by the employer throughout the period of leave; and
· the Injured Person remains a member of the plan throughout the period of leave; and
· the premium continues to be paid in respect of the insured person throughout the period of leave.”
13 There is no issue that the definition of TPD involves a two-step process, each of which must be satisfied. The first step is that Mr Colella must prove he was unable to do any work as a result of injury for six consecutive months. It is accepted the plaintiff gave notice of the termination of his employment on 20 March 2007.[5] Although it is not clear from the plaintiff’s email, the parties accept that notice was effective as from 20 April 2007. It would appear the plaintiff worked for a number of days, and then on 2 April 2007, took unpaid leave until 10 April 2007.[6] He was then absent on sick leave from 11 April 2007 until 20 April 2007.[7] The medical certificate which accompanied the second period of leave, provided by Dr McClelland, stated that the plaintiff was suffering from an “anxiety reaction” and was certified as being unfit for fourteen days. The six consecutive months referred to in the first limb of the definition thus expired on 20 October 2007.
[5]Exhibit 2
[6]Exhibit D, CB 305
[7]Exhibit D, CB 304
14 If the first limb is satisfied, then the plaintiff must also satisfy the second limb; that is, that he continued to be so disabled as to be unable to resume his previous occupation or any “other Occupation” (as defined) at any time in the future. In respect of this second limb, it is the opinion of the insurer which must be considered.
The Evidence
15 Evidence was given by the plaintiff, Cesario Collela. He was born in 1958 and left school at sixteen. He has no formal qualifications. He initially worked for several weeks for VicRail in a clerical role. He joined Visy Board (“Visy”) in 1981. He spent two years working as a stacker and machine operator. He then worked in the despatch office, and was promoted to the position of supervisor, then became the despatch manager, and was responsible for about twenty-six people. His role was to ensure the despatch area ran smoothly. His work was largely supervisory in nature. There was some accounting work and general bookkeeping. He did short courses in health and safety, and supervision. At Visy, he was required to do a significant amount of walking, up to 16 kilometres per day. He averaged about 14 kilometres per day.
16 While working for Visy, he hurt his right knee. He tripped on some debris. Over the years he had about six falls, and his knee became worse all the time. It was inflamed and swollen. He first went to see a doctor in about 2003 because he was in significant pain. He kept working throughout and did not complain a lot.
17 He also drove a forklift at Visy on a regular basis, although over his last year or two, the driving was reduced. He could not handle the forklift because his leg locked up, and also because of union rules. In the last year he did not drive the forklift at all.
18 In about 2006, he was contacted by Paul Sverma, whom he had known from Visy, to come to work for CHH. It was proposed that he work in the same role. Initially he refused the approach, but when approached again, gave it further consideration. He said he had been at Visy for twenty-five years and wanted a change and with easier work. Sverma had told him that the work would be less demanding and he would be managing less people, up to ten. CHH was in the same paper or cardboard manufacturing business, but turned over far fewer pallets per day (400 as compared to 1,600 at Visy). He eventually agreed to the change and it was agreed that his work hours would be 6.00am to 2.00pm. The pay was less. At Visy he was earning $92,000 to $93,000 per year, including car allowance, while CHH was $80,000 per year plus superannuation. He expected the workload to be less at CHH.
19 When he started at CHH he realised there were not enough people working in the despatch area. He was forced to drive a forklift. There were not enough truck bays open. He was shown a plan of the area[8] and described the location of various areas, including the administration block, his office, machinery and pallet bay areas.
[8]Exhibit B
20 There was a meeting in the mornings at about 8.00am. He had to walk 60 or 70 metres to get to it. If he had to photocopy, fax or undertake other administrative matters, he had to walk to the administration building 130 to 140 metres away. He also had to go to the administration building for other issues including occupational health and safety and to speak to managers.
21 He would start work at about 5.30am and open up the factory. He would check that the products from the previous day’s orders had been appropriately despatched. He had two other people working under him in the despatch area. He had limited capacity to work with computers as his skills were not great. He had to manually write out documents. Aside from his work on the forklift, he had to walk into the pallet area to look for products. The work had to be carried out quickly as there was pressure to get the trucks loaded and unloaded. He would walk up and down the aisles and on occasions climb up the racks. His manager, Christopher Beadles, came into his area two or three times a day. He would go to the administration area twelve or so times a day and also walk out for a cigarette. If pallets fell over, they had to be picked up.
22 He found the forklift driving hard because he had to get up and down into a cramped space. His knee would swell. It was hard to turn around in the forklift, and he used his right leg on the brake and accelerator. This caused pain. At times, the pain was so bad that he stayed overnight at a friend’s place or with his mother-in-law, because he could not make the drive home. At work it was hard to balance on his left leg with his right leg out. Gradually, things got worse.
23 At times he was driving the forklift all the time; at other times fifty per cent. On average he would drive it sixty to seventy per cent of the time, although it varied. Ninety or ninety-five per cent of his time was spent on the forklift, or walking around the building. The balance was in bookkeeping and other duties. The distance he walked each day was less than Visy, about 7 to 8 kilometres.
24 He had discussions with Mr Beadles about his knee. On one occasion he was limping badly, and Mr Beadles compared his knee which he said had also been injured.
25 The plaintiff started work at CHH on 8 November 2006. Towards the end of his employment, he had a discussion with Mr Beadles, who told him he wanted to change the plaintiff’s work hours. The plaintiff replied that he could not work any longer hours with his knee. Mr Beadles said the change of work hours was to benefit the business. The plaintiff described that he had to get in early to ensure that the factory was opened up. Mr Beadles wanted longer hours. Although his hours ceased at 2.00pm, he worked past that on occasions. He said he could not work longer hours because of his knee. On previous occasions the plaintiff had asked Mr Beadles for some assistance with the forklift and was told “I’ll see what I can do”. On occasions there was some assistance provided.
26 Mr Beadles said that he wanted him to work from 8.00am to 5.00pm and therefore the hours were longer. The plaintiff said he was struggling with the work he was doing and could not do more. He had time off with his knee, including on 17 January 2007.[9] He also applied for unpaid leave from 2 to 10 April 2007, and sick leave from 11 to 20 April 2007.[10] He went to his general practitioner, Dr McClelland, around this time. He was absent in April because of anxiety regarding his work future. He was worried about his finances. Everything looked miserable. He said he did not know what he could do into the future.
[9]Exhibit C – Certificate of Work Capacity
[10]Exhibit D – Leave applications
27 At the time when he was driving the forklift, he had locking of his knee, aching and cramps, and had to stop and stretch the leg. At the time he was living in Kilmore, which was about an hour and a quarter’s drive to work.
28 He had a hobby farm of approximately 100 acres, 70 acres of which was useable land. He tried to do a bit around the farm at this time but was not able to do much. He gave notice in March 2007 and stopped work in April 2007. He stopped work because of:
· His conversation with Mr Beadles;
· The problem with his right knee;
· Various other issues, including that the work was harder and that he had not been told he had to do so much forklift work. Also, the administrative duties were difficult and no one was able to teach him.
29 The floor at CHH was concrete and, in parts, broken and difficult to walk on with his knee.
30 He was asked whether he could have continued to work as despatch supervisor if he was not required to drive a forklift. He said walking would still be a problem. That was required in the cardboard industry, which was different from other industries. Every job he has had in despatch involved walking.
31 As to medical treatment, in 2003, he was referred to an orthopaedic surgeon, Mr Henderson. He performed an operation for a foot problem. He went back to Mr Henderson for his right knee because of the various symptoms he was suffering, including grinding, giving way and swelling. He said the knee locked up and felt like it was about to go. In 2004, he had arthroscopic surgery performed by Mr Henderson. The knee was better for a while and he returned to work after about two weeks. Then the knee returned to what it was, and he was referred to another surgeon, Mr Kiellerup. Further arthroscopic surgery was performed in 2005. He was off work again for two weeks or so and there was initial relief, but the knee then returned to its previous state.
32 In January 2007, Dr McClelland again referred him to Mr Kiellerup, who talked about further surgery. Mr Kiellerup told him that he was too young for a knee replacement and would have to put up with the pain. He had an x-ray and an MRI scan, and the surgery was paid for by the WorkCover insurer. It took some time for approval, and further arthroscopic surgery occurred on 1 August 2007. He did not work from when he left CHH in April 2007, and was not paid any money. He was asked whether he wanted to stop work at CHH and said he did not.
33 The plaintiff was then cross-examined. He did not tell the people at Visy that he did not want to drive the forklifts because of his knee problem. Likewise, he did not tell his superiors at CHH he could not drive a forklift because of his knee nor that there was a danger in him driving the forklift.
34 At Visy, he did a number of clerical tasks, but was mostly involved in organising the loading of vehicles. He recalled going to a pre-employment medical assessment.[11] He accepted, as per the assessment, that he would have said that his knee was OK “now”, so there were no restrictions. He had two staff working under him in the despatch area, and another person was employed shortly before he left. The plaintiff had a forklift licence and was not allocated any particular forklift, although there was one spare.
[11]CB 506
35 It was put to him that only about thirty per cent of his work involved the forklift. He said he disagreed; it was more. He was taken to a report of Dr Horsley.[12] He accepted that he told her that the forklift component was thirty per cent. That was not right; what he told her was wrong.
[12]CB 325
36 He was taken to a statement of his employer[13] where, according to that statement, his “driving” was thirty per cent. He said this was not correct. He filled out the Injury Claim Form, although needed a friend to help.[14] That said that he normally worked 40 hours. He said he normally worked more than 40 hours. He would arrive at 5.30 in the morning. The hours he was told he was going to work by Mr Sverma was from 6.00am to 2.00pm; however, he had to get there earlier in order to get the business off and running. He would sometimes remain until 3.00 or 4.00pm in the afternoon. He disagreed that he was generally gone by 2.00pm.
[13]CB 244
[14]Exhibit E
37 He accepted that he had a 100-acre farm at Kilmore, of which 70 acres was viable land. He would run up to twenty-two cattle at best, although less because of the drought. There was little work to be done in a drought. Some afternoons after work he might do some things around the farm. He would also sleep for a bit and then check the cattle.
38 It was suggested to the plaintiff that he left because he wanted to work longer hours on his farm. He accepted that in his email, when he resigned, there was no mention of his knee being a problem. He said it was common knowledge. It was put to him that Mr Beadles wanted him to work later in the day so that he was there when the afternoon shift man arrived. As a result, he would be able to control what occurred in that shift. The plaintiff said he was not told that.
39 It was put to him at CHH he was only walking about 3 kilometres per day. He disagreed. He said it was about 7 or 8.
40 In relation to the conversation with Mr Beadles about work hours, he said he could not recall exactly what was said. Mr Beadles said to increase his hours. The plaintiff asked “to what”? Mr Beadles shrugged his shoulders. He accepted he did not say to Mr Beadles that if the company was able to keep him off the floor and provide more people to assist, that he would stay.
41 In addition to the day off in January 2007 (“as per the medical certificate), and the days off in April 2007, the plaintiff said that he had three or four other days off because of his knee. He did not go to the doctor but he said Mr Beadles knew about it. According to a report of Mr Simm,[15] he agreed that he told Mr Simm at the time he saw him, he was seeking work. He went to an employment agency in Seymour, but they did not get back to him. He looked in the papers and made some phone calls. He did not get an interview. He was hoping for a job around the Kilmore area, but there were few available. He was taken to the report[16] where he agreed he told Mr Simm that:
[15]CB 490
[16]CB 491
· There was no locking nor giving way of the knee.
· He had no difficulty with the activities of daily living and was able to drive a motor vehicle.
· He was able to negotiate stairs and inclines in a normal way, although with some pain.
· He was able to do non-physical managerial work at Visy without restriction.
· He was actively involved in the management of his cattle farm.
42 Generally, he accepted he told Mr Simm these things, although he could not recall saying some of them. He was taken to the conclusion of Mr Simm that he was not working because of his resignation rather than because of his right knee. He said he would not have said that.
43 He acknowledged he had not told Mr Simm that he had difficulty with walking, or getting up and down from chairs.
44 After the first trucks had been loaded and departed at around 7.00am, he had other tasks, including delivering various goods, attending to trucks as they came in to deliver product and various other things. The despatching of trucks at CHH continued after 2.30pm, sometimes until late in the evening.
45 Surveillance film taken of the plaintiff in July and August 2008 was tendered.[17]
[17]Exhibit 4
46 In re-examination, he said that if he had got to work at 8.00am, there would be no one in the morning to do the work necessary to prepare for the trucks that were to arrive. He said it was common knowledge at the workplace that he had a bad knee. He limped, and others knew about it. Mr Beadles knew about it because he spoke to him on a number of occasions about it. That was why it was not mentioned in his email.[18]
[18]Exhibit 2
47 In relation to the comments to Mr Simm, he said that, in talking about his knee locking, he was referring to the time of the examination when Mr Simm requested he do various exercises. He said that to other doctors, including a previous general practitioner, and Mr Kiellerup. He said he was able to “manage” his cattle farm, but this did not mean work on it.
48 Evidence was given by Mr Jim Kiellerup, orthopaedic surgeon. Various of his reports, letters and medical certificates were tendered.[19] He first saw the plaintiff on 1 September 2005 at the referral of his general practitioner. He performed the first arthroscopy on 19 October 2005. The last time he saw him was on 23 November 2010. Over that period there had been a degenerative progression of his right knee condition.
[19]Exhibit G
49 On the first consultation, the plaintiff described ongoing symptoms in his right knee, including pain, which was worse after work, and walking any significant distance. He said he felt his knee may give way on occasions. On examination, Mr Kiellerup found significant crepitus and an MRI scan showed an extensive tear to the lateral meniscus with an associated cyst.
50 Mr Kiellerup saw the plaintiff again on 30 January 2007 with a complaint of ongoing right knee pain. The plaintiff said his knee ached at night and there was swelling. The plaintiff complained of intermittent trouble with walking. On examination, there was:
“A 5 degree fixed flexion contracture. There was significant knee joint effusion.”[20]
[20]CB 335
51 Approval was sought from the WorkCover insurer for a further arthroscopy, and that approval was given in about July 2007. At that surgery, there was Grade 3-4 arthritis with some synovitis. There was full-thickness loss of cartilage, all the way to the bone. Mr Kiellerup diagnosed advanced right knee osteoarthritis and that eventually the plaintiff would come to a total right knee replacement. He was too young for that to be undertaken in 2007.
52 In cross-examination, Mr Kiellerup was taken to his clinical notes[21] which noted that in December 2007 when he saw the plaintiff, he was able to walk for 30 minutes. He was taken to a medical certificate which he completed in May 2008.[22] The writing in paragraphs 2, 3 and 4 was not his. He was unable to identify who had written that, but thought it had been written in before he signed it. He was unable to answer whether he knew about the plaintiff’s education, training and experience, as enquired after in paragraph 5, at that time. He completed a Certificate of Capacity[23] saying the plaintiff was unfit for any duties from 1 August 2007 to 30 August 2007, which would have been handed to the plaintiff at the time of the arthroscopy.
[21]CB 394
[22]CB 148
[23]CB 441
53 When he saw the plaintiff on 30 January 2007, he was not asked to form an opinion about the plaintiff’s work capacity. He documented that at the time the plaintiff was working and so obviously he had a capacity for work.
54 In March 2012, he received a letter from the solicitors for the plaintiff.[24] Attached to that letter was a certificate that he was asked to sign.[25] That certificate said:
“1 [Cesario Collela] was unable to do any work as a result of injury for six consecutive months following his cessation of employment on or about 20th April 2007.
2 At the end of six months he continued and continues to be so disabled that he is unable to resume his previous occupation at any time in the future and will be unable at any time in the future to perform any other occupation, whether on a full time or part time basis, given the limits of his education, training or experience because of his injury which I have detailed in my previous medical reports.”
[24]CB 373
[25]CB 377
55 He signed that certificate and dated it 27 March 2012.
56 In relation to the certificate, he agreed that when he saw the plaintiff in January 2007, the plaintiff was working, and he received no updates until he saw him for surgery in August 2007. He agreed he would have been unable to form an opinion as to the plaintiff’s work capacity at 30 April 2007, given those facts.
57 Evidence was given by Mr Rodney Simm, orthopaedic surgeon, who examined the plaintiff for the WorkCover insurer in June 2007. His reports of 21 June 2007 and 17 March 2009, together with accompanying documents, were tendered.[26] He confirmed that the history given under the headings “Current Condition” and “Daily Activities”[27] was information provided by the plaintiff in answer to his questions. Further, according to the history provided, the plaintiff said that he had ceased work at CHH on 20 April 2007 “when the work arrangements were changed and were no longer satisfactory”. The plaintiff said he was currently seeking work. He further provided a history that there was no locking nor giving way in the knee joint and that –
“He lives on a cattle farm of 100 acres. He still manages all of the normal farm work associated with him looking after the farm and his livestock. He works in the presence of right knee pain. He lives alone. He has no difficulty with the normal activities of daily living and he is able to drive a motor vehicle.”[28]
[26]Exhibit 5
[27]CB 491
[28]CB 491
58 In his first report, Mr Simm concluded the plaintiff did have a current work capacity, and noted that he worked in a non-physical managerial position for a number of years and that he was physically capable of undertaking that work without restriction. Mr Simm noted the plaintiff was not working but that was because of his resignation from CHH, and not because of his right knee injury.
59 In cross-examination, he agreed that the principal reason for the report was to determine whether the plaintiff’s knee condition was work related, rather than to assess work capacity. He said, referring to the final paragraph of his letter of 17 March 2009,[29] that his reference to the general practitioner assessing work capacity meant work capacity over the period from 2007 to 2009, after he had assessed it. He said his reference to the word “manages”[30] meant “copes”.
[29]CB 498
[30]CB 491
60 Mr Simm formed the view that the plaintiff’s work both at Visy and CHH was essentially non-physical, although there was a small physical component. He had received a history that the plaintiff walked round various parts of the factory and there was some manual handling, but it was minimal.
61 Mr Simm found out the sort of work the plaintiff was doing at Visy to assist him in determining whether the claim to the WorkCover insurer was work related. His view as to the plaintiff’s work capacity was formed on the basis that he was told that the plaintiff had not left work because of his knee condition.
62 He was taken to his clinical notes, which said:
“Left mid 2005, not for medical reasons, given offer, Carter Holt Harvey, left because changes were made to employment arrangements which were unsatisfactory. He is now looking for work.”[31]
[31]Exhibit 5
63 The leaving because of unsatisfactory arrangements related to CHH. The leaving work not for medical reasons related to Visy. Mr Simm said the plaintiff did not tell him that he left work because the arrangements were too demanding for his right knee. According to the clinical notes, Mr Simm was told –
“Lives on cattle farm, 100 acres, does everything with sore knee, some physical work, tractors, ride-on mowers, lives alone.”[32]
[32]Exhibit 5
64 Mr Simm accepted that someone with the plaintiff’s knee would have difficulties using a forklift. He had received a history that the plaintiff had walked all day on a concrete floor at Visy. He understood the plaintiff was coping with the walking.
65 Mr Simm accepted that, when he wrote this report, he meant that the plaintiff had not had a work capacity given the injury he had, rather than a work capacity for “suitable employment” as that was defined in the Act. He said he just meant that the plaintiff could work. He accepted that the plaintiff would have pain upon kneeling or squatting and he would not be able to do work which had a lot of that.
66 In assessing the plaintiff’s work capacity, Mr Simm said he had regard to the plaintiff’s age, his physical condition, his geographical location, his education, his past work experience and his occupational qualifications. The plaintiff did have a work capacity in 2007. He understood the plaintiff had left both Visy and CHH for reasons other than his right knee. He described the plaintiff as a stoic person who was prepared to work with a painful knee.
67 Evidence was given by the plaintiff’s treating general practitioner, Dr Richard McClelland. He has been a general practitioner for 40 years and had treated the plaintiff since about 1985. In August 2005, he referred the plaintiff to Mr Julian Feller, orthopaedic surgeon. On 17 January 2007, he referred the plaintiff back to Mr Jim Kiellerup, orthopaedic surgeon. This was because of increased pain and disability to the plaintiff’s right knee which he was suffering at the time. He had continuing problems with his ability to work. He received a letter in reply from Mr Kiellerup.[33]
[33]CB 415
68 On 11 April 2007, he provided a medical certificate to the plaintiff for “anxiety reaction” and certified the plaintiff as unfit for fourteen days. According to Dr McClelland’s clinical notes, he recorded on this day: “Stressed about life. Work conditions not satisfactory. Felt at risk of losing job. Domestically things are not going well.” He provided a report to the plaintiff’s solicitors of 3 March 2008.[34] By letter of 6 March 2008,[35] he said that the plaintiff’s right knee injury was unlikely to improve and that he was permanently incapacitated for his previous employment. He provided a number of other reports.[36] On 26 March 2012, he signed a certificate prepared by the solicitors for the plaintiff.[37]
[34]CB 445
[35]CB 129
[36]CB 124-128, 132-134, 252, 333, 447
[37]CB 378
69 In cross-examination, he accepted that the first consultation in relation to the plaintiff’s right knee was on 17 February 2003, although it came up in passing. The first full consultation in relation to the plaintiff’s right knee was on 1 August 2005. The plaintiff may have had another general practitioner looking after him. Dr McClelland was not aware of the original injury which caused the disability to the right knee. There were two consultations in August 2005 and then the next consultation relating to the knee was 4 January 2007. That records that the knee was swollen and painful. At this time, Dr McClelland was aware that the plaintiff had been working at Visy, but had now changed employment and was working at CHH, doing a similar job in the same industry. There was no medical certificate written for the attendance on 4 January 2007.
70 On 17 January 2007, the plaintiff requested Dr McClelland write a certificate for being off work the day before. At this point, Dr McClelland was aware the plaintiff had been working before 17 January 2007, and he expected he would continue to work after that date. There was no further consultation until 11 April 2007 when he recorded “Feeling stressed after losing his job and the drought is affecting his cows. He is unable to return to workplace because of attitude that exists there. Suggested that he contact Wageline about work conditions.” He accepted that on this consultation, there was no direct mention of the knee.
71 The next reference to the knee was on a consultation on 6 March 2008. Dr McClelland recalled that as at April 2007 the difficult attitude in the workplace related to the unsympathetic attitude of the plaintiff’s employer to his right knee problem. The right knee problem was the plaintiff’s major health issue at the time.
72 In relation to the certificate he signed on 26 March 2012,[38] he acknowledged that that certificate was prepared by the plaintiff’s solicitors and attempted to summarise his opinion. He considered the document before he signed it. It was put to him that the “injury” referred to in the first paragraph was the plaintiff’s anxiety reaction suffered in April 2007. He disagreed with that. He said that the anxiety reaction was in the context of the plaintiff as an employee having a significant knee problem. The plaintiff was very distressed about his knee. Around April 2007, Dr McClelland thought the plaintiff had trouble driving and climbing in and out of the forklift, walking on concrete floors, going up and down ladders and the like.
[38]CB 378
73 He said the plaintiff was not able to perform his pre-existing employment as at April 2007. He said it was possible the plaintiff could perform a sedentary job if he had the appropriate education, training and experience. Dr McClelland said he would have to have knowledge of that sedentary job, including the tasks that were to be undertaken. He said the plaintiff would be capable of sitting and working at a desk. He said walking would be a very significant impediment for him. Walking 50 metres would be excessive.
74 Evidence was given by the plaintiff’s partner, Ms Julie Anne Rowe. She is a customer service officer at Visy. She met the plaintiff more than fifteen years ago and they commenced living together in 2006. For as long as she has known him he has had a right knee problem. It was slowly getting worse. Towards the end of 2006, he said that he was looking for another job which would be easier on his knee. At first, the job at CHH was fine and then he deteriorated. He did not make many complaints but asked her to help out around the farm, including driving the tractor, the ride-on mower and the car. He walked with a limp and sometimes staggered.
75 He had difficulties with driving, including getting in and out of the car. At the end of his time at CHH he was complaining that he was doing more than was indicated at the outset. He was upset. There was too much physical work. He finished at CHH because he said he was not able to do it any more. For six months after he finished work, he was about the same. She did most of the maintenance around the house, including using the mower, whipper-snipper and painting. He could not climb up ladders.
76 In cross-examination, she said that when he was at CHH, she started taking over the house maintenance. At Visy, the plaintiff was okay, although she would help. He wanted a change and easier work at CHH. She thought the deterioration of the knee might have been around January to February 2007.
77 Evidence was given by Gareth Wallis. He commenced work at CHH in December 2006, and before that was at Visy for eighteen years. He knew the plaintiff, who worked in the despatch department at Visy. CHH recruited a number of operators and supervisors from Visy. Their business was disorganised. In 2011, it was sold to Colourpak. Some transferred to that company, and others were retrenched.
78 At CHH he was a leading hand and looked after the process work on the machines. He worked on inward goods and worked in an area near the plaintiff. His machines worked 24 hours a day. He saw the plaintiff regularly as he was around Mr Wallis’s area. He was regularly inspecting the racks. It was a distance of 50 to 60 metres from the despatch area to the main office.
79 The plaintiff had a range of jobs, including booking tasks on the computer, directing the forklift drivers, being involved in the manifests, walking to the office to obtain orders and driving a forklift. He was maybe on the forklift 40 per cent of the time. Mr Wallis saw the plaintiff favouring his knee. He could not recall whether he walked with a limp at Visy.
80 Evidence was given by Jethro McDonald. He had worked at Visy for about ten years as a labourer and machine operator. He knew the plaintiff there. The workplace at Visy was highly organised. They were market leaders.
81 He left Visy to take up a position at CHH to get an old plant up and running. He went there as a sheeter supervisor and technical adviser.
82 He had a lot to do with the plaintiff at CHH and described him as a good worker. The plaintiff was often on a forklift, maybe 50 to 70 per cent of the time. He went to CHH some months before the plaintiff. The plaintiff walked around the plant regularly. Towards the end, he was having problems with his right knee and struggling to walk. That was not noticed at Visy particularly. Mr McDonald started work at 4.30 to 5.00am and left around 5.00pm. The plaintiff was not too far behind him, arriving and leaving around the same time. He was the first person into the plant, although there was a nightshift there working one of the machines.
83 In relation to the plaintiff being on a forklift 50 to 70 per cent of the time, Mr McDonald acknowledged he was not observing him all of the time. That was the percentage at the times he saw him. He saw him a fair bit during the day as he worked nearby.
84 Aside from Mr Simm, the defendant called only one witness, Mr Christopher Beadles. He worked for CHH between 1997 and ceased in late 2011. In November 2006, he was the services manager and knew the plaintiff. He was the plaintiff’s immediate supervising manager. He said the plaintiff worked from 5.30am to 1.30pm, although he was not involved in his recruitment nor the setting of his hours.
85 The plaintiff was the despatch manager, and his duties included co-ordinating freight requirements, co-ordinating and planning the loads, looking after the labour at his disposal and basically making sure deliveries were made to customers in full. He said there was no manual handling involved. He said about 30 per cent of the plaintiff’s time was in forklift driving, and a further 30 per cent when he was on his feet. The balance of his time was in sedentary work including load planning, generating pick slips and invoices. As despatch manager, the plaintiff was responsible for getting loads out, and it was important they go out on time.
86 The drivers would arrive between 5.30 and 7.00am. The plaintiff would be required to check the paperwork was right and the goods loaded onto the truck. There was a morning meeting next to his office, which was about 50 to 60 metres away from the despatch area. He thought the plaintiff might walk for about an hour a day.
87 He was not aware the plaintiff had a knee problem, although said that he walked with a funny gait. Mr Beadles said he never received any complaints from the plaintiff about his knee, or that he was impaired in carrying out his activities.
88 At one point, Mr Beadles approached the plaintiff in relation to his work hours. There were issues with deliveries where product had been left behind and not delivered. The plaintiff would go home without the product being delivered in the course of the afternoon. He said he approached him and told him that there was a need to change the plaintiff’s start and finish times. He gave the following evidence of the conversation:
“Q: Can you tell His Honour as best you can remember what you said to him in that conversation?---
A: That we need to look at changing your start and finish times to accommodate deliveries for the customer.
Q: And were you more specific about the start and finish times you wanted him to move to?---
A: Yes, no earlier than 6 a.m. start and no earlier than leaving at 2 p.m. in the afternoon.
Q: And did you explain to him why that was?---
A: Yes.
Q: What did you say to him?---
A: There was issues with the deliveries being made to the customer, they weren’t happening and we needed to change the hours to accommodate that.
Q: Did you say anything to him about working beyond 2 p.m.?---
A: No, there was no expectation of working longer hours, the key focus was on making sure the deliveries occurred.
Q: Did he respond at all?---
A: Yes.
Q: What did he say to you?---
A: He said he wasn’t prepared to do that because it would interfere with the running of his hobby farm.
Q: Did he say what in particular would interfere with the running of his hobby farm?---
A: The hours, not finishing at 1.30.
Q: And was he working any later or required to work any later than that?---
A: No.
Q: Was he ever required to work any later than 2 p.m.?---
…
A: It wasn’t mandated, if required and there were still deliveries to go out, yes.
Q: Did you tell him that?---
A: Yes.
Q: What did he say about that?---
A: That he wasn’t prepared to do that and he would resign.
Q: What did you say to him?---
A: That you need to think about that, I can’t move with the hours but you need to think about resigning.
Q: And was there anything said in that conversation about the physical demand of the job?---
A: No.
Q: And did he say anything to you in that conversation about his knee or any inability to cope with the physical nature of the work?---
A: No.
Q: So your evidence is you said to him he ought to have a think about it, did he then come back to you after that discussion?---
A: The following day.
Q: What did he say to you?---
A: That he hadn’t changed his mind and was still prepared to resign.
Q: What did you say to him?---
A: Give it to me in writing.
…”[39]
[39]T289-290
89 Subsequently, the plaintiff sent an email.[40] He signed the applications for leave.[41]
[40]Exhibit 2 – CB 518
[41]Exhibit D – CB 304, 305
90 In cross-examination, Mr Beadles said he worked from 8.00am to 5.00pm. He accepted the plaintiff was a hard worker. He denied the plaintiff was “tasked” with the job of improving the plant or creating new loading bays. Around this time, there were twenty to thirty persons made redundant. He was not aware why.
91 He denied that there was some tension between himself and other workers and that he did not like being told how to run the factory. At one point he demoted another worker, Mr Redman.
92 He was not sure whether the plaintiff’s “funny” gait was a limp. It was possible it was, but he made no enquiries. He described his office on the plan.[42] It was upstairs in the middle of the plant. He would have thought the distance between the despatch area and the main office area was less than 100 metres. He would see the plaintiff two or three times during the day to tell him about loads, that were coming in. His estimates of the time taken by the plaintiff during the course of a normal day in forklift activities and walking was based upon what he believed the plaintiff should be doing. He was not there in the early part of the morning to see what the plaintiff did.
[42]Exhibit B
93 He denied any conversation with the plaintiff about his own arthroscopy which had healed well. There were some days when the plaintiff finished work at 12.30pm.
94 In answer to questions by me, Mr Beadles said:
Q:“So I can get this clear, Mr Beadles, in your evidence you said he was to work until 2 p.m.?---
A:Yes
Q:And according to my note you said there was no expectation upon him to work beyond that but then subsequently you said if there still were deliveries to go out he had to work beyond 2 p.m., that was mandated; have I got that right?---
A:Yes, it was about the deliveries going out the door, yes.
Q:So what his official finishing time was 2 p.m. but if there were deliveries still to go he who to (would) remain until they were gone?---
A:Yes.
Q:And is that what you told him in this conversation?---
A:Yes.”
95 He denied he told the plaintiff he had to work 8.00am to 5.00pm.
Conclusions from the evidence
96 It is clear the plaintiff suffered a significant injury to his right knee initially in the course of his employment with Visy around 2003. That has required a number of arthroscopic procedures, most recently by Mr Kiellerup, orthopaedic surgeon, in 2005 and again in August 2007. Initially, in 2005, the MRI scan investigation showed an extensive tear to the lateral meniscus which was repaired by arthroscopic surgery in October 2005. There was articular cartilage damage seen at that surgery and the plaintiff, initially, made a reasonable recovery. The condition of his right knee, however, degenerated, in keeping with the progress of arthritis in the knee, and by January 2007, the plaintiff was again referred to Mr Kiellerup describing extensive pain in the right knee, swelling, aching at night and intermittent difficultly with walking. In the arthroscopic surgery of August 2007, there was evidence of widespread inflammatory synovitis, significant knee joint effusion and small tears of the meniscus. There was advanced articular cartilage damage, and in parts there was no cartilage at all. Thereafter, the plaintiff’s right knee has gradually deteriorated and his capacity to undertake a range of activities consequently reduced. The plaintiff has advanced right knee osteoarthritis and I accept that it is a likely he will require a total knee joint replacement.
97 In determining the various conflicts upon the evidence, in particular between the plaintiff and Mr Beadles, I assess the plaintiff as an honest witness giving a reasonable account of the condition of his right knee, and the circumstances under which he left employment. He answered questions in a way I would expect of an honest witness, and made reasonable concessions.
98 I accept his evidence that he moved from Visy to CHH because he felt it was time for a change, and on the assurance of Mr Sverma that the work was less demanding, in that it was not as physically difficult, required him to supervise less persons and CHH did not produce the same number of pallets per day. I accept this was all because of his knee.
99 While Mr Beadles gave his evidence in a relatively straightforward manner, I was unimpressed with his evidence of the conversation where he sought to change the plaintiff’s work hours. Initially, Mr Beadles said he required the plaintiff to work from 6.00am to 2.00pm. However, in answer to questions by me, he conceded that in fact what he said to the plaintiff was that he had to work longer hours on those occasions when there was despatch which needed to be completed on the day. This was different from his evidence-in-chief. As a result, I have reservations about the credibility of Mr Beadles’ evidence generally, and particularly as to the conversation on that day.
100 I prefer the evidence of the plaintiff, that is his hours of work were from approximately 6.00am until 1.30pm, although he generally started work at 5.30am. I accept his evidence that in the conversation with Mr Beadles, although he was uncertain as to the precise hours Mr Beadles wanted him to work, it involved an extension of hours into the afternoon. I further accept the evidence of the plaintiff that he refused to work those hours. It is clear that the plaintiff made little in the way of complaints about his knee to Mr Beadles or to other persons at the company. However, I accept the plaintiff’s evidence, and some of his co-workers, that it was known within CHH that he had a right knee problem. I accept his evidence that he limped regularly and with a knee with the advanced arthritic condition that he had, it would be relatively obvious that he had difficulties both with walking, and undertaking heavier activities.
101 I further accept the plaintiff’s evidence that he had a conversation on at least one occasion with Mr Beadles where there was discussion about their respective knees. I reject Mr Beadles’ evidence that all he knew of the plaintiff’s knee condition was that he had a “funny” gait.
102 There is a significant conflict as to the reason why the plaintiff left employment after the conversation with Mr Beadles and gave notice from March 2007. I accept that the primary reason for his resignation was related, in one way or another, to his right knee, although that is not obvious from the email he sent at the time. I accept that he was suffering significant problems with the knee at the time, and was upset after the conversation with Mr Beadles in which he was requested to work longer hours. I further accept that he was upset that the promise by Sverma earlier made did not turn out to be correct, and that the work was demanding. I further accept that a very significant proportion of his time was spent in forklift driving and walking around the factory. It is difficult to be precise as to the percentage of time spent by the plaintiff in those duties, but I accept that he was required to walk 7 to 8 kilometres per day and, despite histories to doctors given at the time, that something over 50 per cent of his time was in forklift driving. On any view, these duties were demanding for a person with a seriously arthritic knee.
103 I am not satisfied the plaintiff left his employment because the proposed increased hours were to curtail his work on the farm. I accept his evidence that the farm was only a modest enterprise requiring little time and energy to keep it maintained. I accept the evidence of the plaintiff’s partner, Ms Rowe, that by early 2007, she was providing assistance in farm duties, and the plaintiff was doing less. I accept his evidence that because of the drought, the number of cattle he ran on the property was modest. As a matter of common sense, it is highly unlikely the plaintiff would have given up employment and a good wage to look after a farm which produced virtually no income. The plaintiff had responsibilities and commitments he needed to meet. There was no suggestion he was looking for other employment. In summary, I am satisfied that the genesis for his resignation from his employment was his right knee condition.
104 Generally, I accept the opinions of Dr McClelland and Mr Kiellerup as to the plaintiff’s right knee condition. However, in relation to the certificates signed in March 2012, as prepared by the plaintiff’s solicitors,[43] I am not satisfied that, despite the fact they are signed by each respective doctor, they fairly represent their opinions at the time. Neither was in a position to make an assessment of the plaintiff’s work capacity the certificate required, in particular Mr Kiellerup. The certificates are of little if any assistance in determining the issues in this trial.
[43]CB 377-8
105 Mr Simm initially examined the plaintiff on behalf of the WorkCover insurer in June 2007, to determine the extent to which the plaintiff’s right knee condition was related to his work at Visy. It was not to assess the plaintiff’s work capacity. The plaintiff admitted that he did not give a full description to Mr Simm of the extent of the problems with his right knee, and said that he was able to do work on his farm. However, in my view, this is more a measure of the fact that the plaintiff is a stoic person, not given lightly to make complaints of pain and restriction. While agreeing with some of the matters put to him from Mr Simm’s report, I am not satisfied he actually recalled what was said. I have reservations as to Mr Simm’s opinion that the plaintiff had a work capacity as at June 2007.
The first limb of the Policy – Was the plaintiff “… unable to do any work as a result of injury … .” for the first six months?
106 Mr Bingham submitted the phrase “unable to do any work” in the first limb of the definition means an incapacity because of injury to do the work he had been undertaking at CHH at the time of the termination of his employment; that is, 30 April 2007.
107 Mr Christie submitted the phrase should not be so confined but rather meant work at large.
108 In my view, the interpretation offered by Mr Bingham should not be accepted. Had the clause intended to refer to the plaintiff’s work duties at CHH, it would have used phrases such as “previous occupation” or “any of the duties of his usual occupation” or “absent from work with the employer”[44] or “absent from work”.[45]
[44]Ivkovic v Australian Casualty & Life Ltd [1994] 10 SR (WA) 325 at paragraph [328]
[45]Sayseng v Kellogg Superannuation Pty Ltd & Anor [2007] NSWSC 583 at paragraph [5]
109 The “any” should be given its usual meaning. The onus thus lies upon the plaintiff to prove that he was unable to undertake any work for the first six-month period, that is up to 30 October 2007.
110 Mr Bingham’s next contention is that the phrase “any work” ought be given a practical realistic interpretation, in particular:
(a)as a regular member of the workforce;
(b)on a full time basis;
(c)in relation to work reasonably available in the real world given the plaintiff’s age, background and injury.
111 Mr Christie, on the other hand, contended that the phrase should not be confined to concepts of:
(a)the plaintiff’s current or usual occupation;
(b)only full time work;
(c)work for which the plaintiff was qualified by education, training and experience; and
(d)work which was available.
112 I have considered the many authorities to which I have been taken in the course of argument. There is no one authority which has considered the definition of TPD in terms identical to the definition in the policy.
113 In Nile v Club Plus Superannuation Pty Ltd & Anor,[46] the relevant TPD clause said:
“Having been absent from employment with the Company for six consecutive months and having provided proof to our satisfaction that the member has become incapacitated to such an extent as to render the member unlikely ever to engage in or work for reward in any occupation or work for which the member is or may become reasonably qualified by education training or experience).”[47]
[46][2005] NSWSC 55
[47]Nile at paragraph [1]
114 Brownie AJ said:
“As Hodgson J pointed out in Chammas[48] … one must consider not just the theory that someone is physically fit to do particular work, but also the actual likelihood of that person obtaining employment, meaning full time employment (or, I take it, substantially full time employment, generally comparable with the plaintiff’s employment before his 1996 injury) that was reasonably open to the plaintiff. Given the plaintiff’s education, training and experience, the prospects of his actually obtaining employment in any of the jobs suggested by Dr Innes-Brown were remote, and perhaps non-existent.
…
The notion that some employer might employ him to do ‘clerical work’ had to be reconsidered in the light of the plaintiff’s affidavits, and one is left to wonder who might realistically be expected to employ him in that capacity, given his education, training and experience; and the proposition that he might be employed as a parking patrolman, standing and walking all day, is equally unpersuasive, given the plaintiff’s statements in his affidavit, and the medical evidence.”[49]
[48]Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175 (NSWCA, Hodgson J, 14 April 1993)
[49]Nile at paragraphs [64] and [65]
115 However, these comments are more directed towards the second limb of the policy, rather than the first limb, which refers only to being absent from work.
116 In my view “any work” should be interpreted to mean “any job”. A person may have a job which requires a range of duties, for example some clerical and some manual. To isolate out some aspect of the work, say filing documents, and say the plaintiff is therefore able to “work” in the face of a significant injury, is unrealistic.
117 The plaintiff also relied upon the decision in Sayseng.[50] Again, however, the comments by Nicholas J that the application of the definition ought take into account the realities of the capacity of the insured to obtain employment, were directed towards the second limb of the definition, relating to the capacity of the insured to obtain employment for which he was reasonably capable, taking into account education, training and experience.[51]
[50]Sayseng v Kellogg Superannuation Pty Ltd & Anor (supra)
[51]at paragraph [64]
118 In Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd,[52] the Court was concerned with the TPD benefit which was said to mean:
“… having been absent from work through injury or illness for an initial period of six (6) consecutive months and in our opinion being incapacitated to such an extent as to render the Insured Person unable ever to engage in or work for reward in any occupation or work which he or she is reasonably capable of performing by reason of education, training or experience.”[53]
[52](2011) 282 ALR 167
[53]Manglicmot at paragraph [28]
119 The New South Wales Court of Appeal reviewed various authorities[54] and said:
“The Hannover TPD clause defines total and permanent disablement. It is quite emphatic: the member must be unable ever to engage in or work for reward in any occupation or work. As further context, the member must have been absent from work for 6 months. Introduction of full time employment or part-time employment into the wording, notions which themselves carry uncertainty (what is the standard for full time employment?) is in my view not warranted. The clause requires unfitness to work, without distinction between full time work and part-time work other than by regard to the work which the member is reasonably capable of performing by reason of education, training or experience.”[55]
[54]at paragraphs [66]-[86]
[55]Manglicmot at paragraph [88]
120 Mr Christie referred to QBE Insurance Ltd v Jande.[56] In that case, the insured claimed to be totally and permanently disabled as a result of injuries sustained. The definition of TPD was:
“Prevents the Insured Person from carrying out all the normal duties of his or her usual occupation”.
[56][1994] NSWCA 366
121 According to the facts of that case, the insured was able to carry out some of his normal duties including serving customers and carrying smaller items. He assisted the purchasers of his business by providing tuition over a period. Significantly, in that policy, the insured was also entitled to a partial disablement benefit, and there was argument that the nature and extent of the insured’s disability brought him within that lower definition.
122 In the end, I conclude that decision is not of significant assistance in determining the issues in this trial.
123 What then is the proper interpretation of the phrase “unable to do any work as a result of injury?” In my view, the phrase should be interpreted to mean a job reasonably available, either on a full time or part time basis, for which the insured has a realistic capacity by reason of physical ability, intellectual capacity or education and training. I say that for the following reasons:
·The phrase “unable to do” presumes there was actual work available which the insured was able to do, absent injury. The phrase introduces the concept of ability. Ability means a capacity, be it physical, intellectual or through education and experience.
·The transition from the first phase of disablement, that is the first six months, to the second phase mitigates in favour of the argument. There must be some purpose why there is a first six month period. The purpose, in my view, is to enable a period after injury or disease for an insured to undertake treatment and/or rehabilitation to enable the insured’s capacity to return to work to be enhanced. It follows that such rehabilitation and/or retraining was intended to enhance the prospects of the insured obtaining some work.
·As stated, the work which the insured is said to be unable to perform for six months must in some way be confined to that which the plaintiff was suited by physical ability, intellectual capacity and/or education or qualification. Where otherwise, a labourer rendered a quadriplegic by a work accident would not qualify as TPD if he had some physical capacity (as opposed to realistic ability) to perform work as a draftsman sitting at a desk. Likewise, a seriously injured quadriplegic with the ability to use a computer operated by a straw from his mouth and thus able to work for an hour or two a month in some form of computer work, would not be regarded as totally disabled. In fact, it is difficult to see how any injured person would qualify under the policy, short of being in a comatosed state. Mr Christie, in submissions,[57] accepted the phrase must mean work that the insured could undertake. He accepted that the work would exclude occupations which were beyond the plaintiff from a physical, educational or intellectual perspective.[58]
·The concept of work must include that which is reasonably available in the marketplace. Were it otherwise, it could be argued that there could be positions, including interstate and overseas, which might theoretically be available to an insured. Such a concept is impractical.
[57]T336
[58]T337
124 I conclude that the phrase “unable to do any work as a result of injury” involves work:
·wider than the work previously performed by the plaintiff at CHH;
·either full or part time;
·which is reasonably available in the marketplace and in an area in which it could be expected an insured in the position of the plaintiff could reasonably apply;
·for which the plaintiff is suited by physical ability, intellectual capacity and/or education or training and experience.
125 The question then is to examine what work, as defined above, would be reasonably open to the plaintiff.
126 On this issue, Mr Christie submitted:
· At the time of the conversation with Mr Beadles which precipitated the plaintiff’s resignation, the plaintiff said that he was at his limit and could not work longer hours.[59] Mr Christie submitted it was implicit that the plaintiff was capable of working the hours he was then working.
[59]T51-52
· After he left CHH, the plaintiff applied for work. Therefore, it is to be presumed the plaintiff had the capacity for that work, otherwise why would he apply?
· Had he known as to the nature of the work at CHH, he would have remained at Visy. He said he would be capable of that work.[60]
· From the medical evidence, in particular the opinion of Mr Simm, the plaintiff did have a work capacity.
[60]T103
127 The first three contentions fail for two reasons. Firstly, I accept that at the time of the plaintiff’s resignation, the most significant reason was because of his right knee, the pain and incapacity which resulted, and the associated lack of understanding of the problem by Mr Beadles. Further, the contentions fail to take a realistic and commonsense approach to employment which would be reasonably available. There is no suggestion the plaintiff could have returned to paid employment at Visy. The fact that he applied for work, and received no response, does not, in my view, indicate that he was necessarily capable of doing any such work. The fact that he received no response is a measure of the fact that work was not available to a person in his position, with his injuries.
128 It should be recalled that the plaintiff underwent arthroscopic surgery by Mr Kiellerup on 1 August 2007. A tear to the lateral meniscus was resected. There was widespread inflammation and effusion. Advanced articular cartilage damage was noted. Realistically, the plaintiff had no capacity for any work in the period from August to 20 October 2007. Although there is no specific evidence to the point, such surgery, even arthroscopic surgery, would require a period of rehabilitation. When reviewed by Mr Kiellerup after surgery in January 2008, the plaintiff said he was “coping” with his right knee and had attempted to obtain employment, but was unable to do so because of the knee.[61] Mr Kiellerup certified the plaintiff as being unfit for any work until 30 August 2007.[62] Thus, the focus of attention ought be over the period from April 2007 until the end of July 2007.
[61]CB 242
[62]CB 441
129 The medical practitioners whose opinions as to the plaintiff’s work capacity over this period are Dr McClelland, Mr Kiellerup and Mr Simm.
130 Dr McClelland referred the plaintiff to Mr Kiellerup in January 2007, noting the plaintiff had a flare up of his knee problem with swelling, pain and limited mobility.[63] He said that the plaintiff was totally unfit for work at the time he ceased employment on 20 April 2007.[64] In particular, he said as his job required sitting, standing, walking and transfer from one to the other, this caused pain and disablement in the knee.
[63]CB 444
[64]CB 447
131 Dr McClelland said that the plaintiff suffered continuing and increasing pain to his right knee over the years from 2005 to 2007. He said:
“To the same extent my feeling with Mr Colella at this time [around April 2007] was he was a very distressed man, he had a lot of problems which originated from his knee and his inability to cope with the job. He felt he was capable of but wasn’t getting a sympathetic understanding from his new employer and it was becoming difficult. The reference you keep leaving out, the last sentence about me suggesting that he contact Wage Line about his work conditions is an indication that this fellow had a lot of issues going on at work, not only about his physical capacity to do it which started the whole problem … about whether he was being paid correctly, whether he was being treated respectfully and I said if you are in any doubt about the terms and conditions upon which you’re being employed Wage Line is a resource you can check in with this.”[65]
[65]T233-4
132 Dr McClelland said all of the plaintiff’s duties were difficult for him, and in particular his work with a forklift.[66]
[66]T237
133 The evidence of Mr Kiellerup, the plaintiff’s treating orthopaedic surgeon, was generally that the plaintiff had a significant and deteriorating problem with his knee. It was sufficiently severe in January 2007 for Mr Kiellerup to consider the further arthroscopic surgery which occurred on 1 August 2007. The delay between the two dates was as a result of the delay in obtaining approval from the WorkCover insurer.
134 Mr Simm, for the defendant, on the other hand, said the plaintiff did have a work capacity in 2007, although he accepted that the plaintiff would have difficulty using a forklift, and would suffer pain upon kneeling or squatting. Generally, I prefer the evidence of Dr McClelland and Mr Kiellerup. They are both treating practitioners and have seen the plaintiff on many occasions. Mr Simm saw the plaintiff for the purpose of establishing whether there was a link between injury and employment, not in relation to his work capacity.
135 In my assessment, over the period from April to July 2007, the plaintiff had no realistic work capacity for either full or part-time employment. The starting point is the plaintiff’s training, experience and qualification. He worked for Visy in the paper industry from 1981. His previous employment for VicRail in a clerical role was for two weeks and of no relevance. He has no formal qualifications nor certificates. Essentially, he has always worked in the paper industry.
136 I am satisfied that over the relevant period in 2007, such was the condition of his knee that he walked with a limp. I am further satisfied he had restrictions as to the distance he could walk, and other physical activities which he was capable of undertaking in the workplace. His physical ability was thus very significantly reduced. From about January 2007 it was planned that the plaintiff undergo arthroscopic surgery. Further, the plaintiff was living in Kilmore and although he was able to obtain employment, both at Visy and CHH while living in that area, such was his disability that at times it was difficult for him to drive longer distances, particularly getting from work to home in the afternoon.
137 Realistically, I am satisfied there was no work reasonably available to the plaintiff when the matters to which I earlier referred, including physical ability, intellectual capacity and education and qualification are factored into the matrix. I am satisfied the plaintiff was unable to do any work as a result of injury over the relevant period.
138 Thus, the first limb under the policy is met.
Was the Plaintiff, from October 2007, so disabled as to be unable to resume his previous occupation in the future or to perform any other occupation?
139 The second limb of the policy requires consideration of the following issues:
· The determination of the plaintiff’s disability is to be made as at the time of the assessment by the defendant.
· The disability is such as to prevent the plaintiff resuming his previous occupation at any time into the future.
· The disability was such as to prevent the plaintiff from performing any other occupation at any time in the future.
· “Other occupation” means occupation for which the person is qualified by education, training or experience.
· Such an occupation includes part-time work or that of a lower status than the previous occupation, or an occupation returning a lower income.
140 The authorities referred to, and the principles raised in considering the first limb of the policy are relevant. The starting point is whether the plaintiff, by reason of his disability, was able to undertake his previous occupation with CHH, and that disability remained “at any time in the future”. Based upon the medical opinions to which I have referred, the evidence of the plaintiff and the conclusions I have reached from the evidence, I am satisfied the plaintiff, by reason of his knee, was unable to resume his previous employment as at October 2007. At that time, he had recently undergone arthroscopic surgery. I am satisfied his work required significant physical exertion. In particular, the amount of walking, use of the forklift and the various tasks involving pallets at the work premises. From that time, if anything, the plaintiff’s condition has deteriorated, following the nature of the condition.
141 Such was the rate of deterioration in the plaintiff’s knee that it was likely, when viewed in October 2007, that the plaintiff would come to knee replacement. I have little difficulty in determining that as at that date, the plaintiff had no capacity to return to his previous employment. That position remained over the period in which the defendant made its various assessments, up to 2012.
142 However, the definition requires a further assessment as to whether he would be able to undertake any other occupation, on either a full or part-time basis for which he was qualified for by education, training or experience.
143 The starting point, again, is the plaintiff’s education, training and experience. As previously stated, he had no particular trade nor other qualification or certificates. He commenced work in approximately the mid-1970s. He worked for a period as a carpenter’s assistant. He joined Visy in 1981, initially performing manual and machine operation work, and then commenced in the despatch area. He has worked in that area over many years, rising to become a superintendent. His training and experience are thus only in that area, and in the paper industry. I accept the plaintiff’s evidence that he had little if any capacity to operate computers, so much a part of the modern work environment, and was not particularly competent in clerical work.
144 It is relevant to take into account the fact that the plaintiff has been unable to obtain employment. To that extent, the matter may be looked at in retrospect.[67]
[67]See Giles v National Mutual Life Association of Australasia Limited (1987) 4 ANZ Ins Cas 60-751
145 As was said in Sayseng:[68]
“… The court is required to ascertain what the insured is actually capable of doing with regard to the qualification that the capacity for work under consideration is that for which the insured is reasonably capable of performing by reason of education, training, or experience. If he requires retraining in order to be employable, he is totally and permanently disabled within the definition. … .
… The court is expected to take a realistic and common sense approach in its assessment. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory. … .”
[68](supra) at paragraphs [63]-[64]
146 So the inquiry as to employment must be in respect of employment which is reasonably open to the plaintiff. It is not some theoretical position nor occupation. It is actual, paid employment, reasonably available. As was said in Cavill Power Products Pty Ltd v Royle:[69]
“… To exclude the plaintiff from the benefit of the policy because he could earn a living if he could obtain an improbable position which involved the doing of practically no work would in my opinion, be most unjust ... .”
[69](1991) 42 IR 229 at page 240
147 I have concluded that, looked at as at October 2007, there was no occupation the plaintiff was capable of performing with his disability, either on a full or part-time basis, given his education, training and experience. That position has persisted through to the present time.
148 However, it is not my conclusion which is relevant. It is the opinion of the defendant.
The opinion of the Defendant
149 In making its assessment as to the plaintiff’s work capacity in the circumstances, the defendant was bound to act reasonably and fairly and to have due regard to the interests of the plaintiff.
150 There were five determinations made by the defendant on the following dates:
· 8 January 2009[70]
[70]CB 293
· 20 April 2009[71]
[71]CB 300
· 15 June 2010[72]
[72]CB 331
· 6 June 2011[73]
· 18 May 2012.[74]
[73]CB 341
[74]CB 525
151 It is convenient to consider the fifth decision, and the material available to the insurer as at that date. That material is set forth in the letter dated 18 May 2012.[75]
[75]CB 525-543
152 I shall not review all of the material which was before the defendant in its final determination of 18 May 2012, but rather to that material, including reports, statements and surveillance footage which is relevant to the question to be considered, and to which I have not referred earlier.[76] The additional material includes the following:
(1) Surveillance-video film of the plaintiff conducted in July and August 2008 at the plaintiff’s property in Willowmavin.
[76]See Exhibit A – CB 42
153 According to the defendant’s opinion,[77] the activities demonstrated on the video supported medical evidence which demonstrated the plaintiff had a capacity for work. The activities included:
[77]CB 543
§ riding a 4-wheel motorbike
§ pushing a wheelbarrow
§ walking varying distances
§ lifting a bag off the ground and placing bags into the tray of a utility
§ bending to varying degrees; and
§ to board, alight and drive a motor vehicle.
154 It was said that all of these activities were not consistent with the level of disability which had been reported. It was further noted the plaintiff moved with a form of limp. I have observed the surveillance. At one point it shows the plaintiff sitting astride a 4-wheel drive motorbike. He pushes a wheelbarrow a short distance. In evidence, he said there was nothing in the wheelbarrow. He is seen to walk about the property with a pronounced limp, and moving slowly. He places a relatively light bag onto the tray of a utility. He drives the utility a short distance.
155 In my view, there is nothing inconsistent between the plaintiff’s claimed disability in accordance with the statements provided to the defendant and the histories to the various doctors, and what is depicted in the video-surveillance. In my view, any demonstrated work capacity is not supported by what is observed in the video. To the contrary, the plaintiff is seen to move slowly, walking with a pronounced limp, and there is no activity to suggest the plaintiff has any work capacity. The video-surveillance was said to depict the plaintiff pushing a wheelbarrow “laden with goods”. The assumptions made by the defendant[78] are, in my view, incorrect.
[78]CB 543
(2)Medical report of Dr James Rowe, occupational physician, of 13 October 2008
156 The plaintiff gave a history of the injury. At the time of examination, the knee was seen to be severe and grossly swollen, with a severe loss of range of motion. There was significant right quadricep wasting. Dr Rowe’s opinion was that the plaintiff had severe degenerative osteoarthritis of the right knee with likely multiple internal derangements. Dr Rowe confirmed the plaintiff would come to right knee replacement. At the time, he said the plaintiff was not totally incapacitated for work but was not fit to drive a truck or other heavy equipment. He could not return to work as a carpenter’s assistant nor any work which would require him to walk up and down stairs or ladders, but it was said he could work in a sedentary position and as a despatch manager, providing there was no driving. It was said: “He might need some retraining or re-education but he does have capacity for employment.”
(3)Medical report of Mr Ian Henderson, orthopaedic surgeon, of 22 April 2008
157 It was noted the plaintiff was first seen in October 2003 for a left foot problem. By November 2004, the plaintiff complained that he had developed pain in his right knee. An arthroscopic procedure was undertaken in December 2004 which confirmed a lateral meniscus tear. The plaintiff went through a standard rehabilitation program. The plaintiff returned to work by April 2005. The prognosis was said to be guarded.
(4)Various reports of Dr Robyn Horsley, occupational physician, of 2009 and 2011
158 Dr Horsley obtained an extensive history. She considered that the plaintiff would be incapable of returning to work as a forklift driver. She noted a history of poor computer skills, although the plaintiff coped with data requirements in his work at both Visy and CCH. She said that the plaintiff would come to joint replacement within the foreseeable future. In order to return to a purely supervisory role, his computer skills would need to be upgraded. This could not be achieved until after the knee replacement because of the plaintiff’s poor functional tolerances and the pain level. She noted the plaintiff was in a bind because he could not pursue a knee replacement until he absolutely required it because of his relative youth. She said he would remain unfit for any work until he had a joint replacement. That replacement would determine whether he had any capacity for work. She noted the plaintiff had been off work for four years. She set out a detailed range of work restrictions which would apply.[79] She said:
“Realistically Mr Colella, with his educational background and lack of computer skills, and from the experience point of view, is suitable for a ‘hands on supervisory role’. His right knee prevents him from pursuing such a role. Once his knee replacement occurs into the future, depending upon the outcome, he may be fit to return to that type of work, perhaps on a part-time basis, but to be attractive to a new employer, he will require an upgrading of his computer skills. He has already been out of the workforce for four years. His age at fifty three years is not a barrier, but by the time he gets over fifty five years, his age will become an increasing barrier. He is also limited geographically in Kilmore.”[80]
[79]CB 350
[80]CB 350
159 Further:
“Without a knee replacement, I believe that he will remain unfit for employment as a despatch supervisor or any other suitable employment whether on a full time or a part time basis, given the limits of his education, training or experience since he ceased work on 20 April 2007. If he comes to a right knee replacement, the timing of that replacement and the results of the surgery will determine whether he has any fitness to return to work on possibly a part time basis as a despatch supervisor into the future. … .”[81]
(5)Reports of Mr Rodney Simm, orthopaedic surgeon, of 21 June 2007 and 17 March 2009[82]
[81]CB 353
[82]CB 490-497
160 In the first report, Mr Simm said the plaintiff did have a capacity for work notwithstanding clear osteoarthritis of the right knee. He said he was capable of doing his normal work, which was not physically demanding. He said the plaintiff was still active on his cattle farm. He noted that his resignation from CHH was unrelated to his right knee.
(6) Report of Mr Kiellerup, orthopaedic surgeon, of 7 February 2011[83]
[83]CB 339
161 Mr Kiellerup noted the plaintiff had not worked for four years and that on balance, he would remain unfit for employment as a despatch supervisor, or any other suitable employment, whether on a full or part-time basis, given his education, training and experience.
(7)Report of Dr McClelland, general practitioner, of 1 December 2010[84]
[84]CB 333
162 Dr McClelland noted the plaintiff had a negligible capacity for work either as a despatch supervisor or in any other suitable form of employment, whether full or part time.
(8) Statement of the Plaintiff of 16 March 2012
163 While at CCH, approximately 70 per cent of his activities were forklift driving, and administrative duties, 30 per cent. 95 per cent of the time was on his feet. His work on his hobby farm was minimal and earned almost no income.
(9) Statement of Joe Listro of 14 March 2012
164 Mr Listro lived on the plaintiff’s property in a caravan and helped with the farming work on the property.
(10) Statement of Claudio Solar of 16 March 2012
165 The plaintiff worked for Mr Solar for one day but could not do more because of his knee.
(11) Statement of Carlton Jackson of 16 March 2012
166 The plaintiff worked for Mr Jackson for three days and struggled because of his knee problem.
(12) Statement of Darren McEwan of 16 March 2012
167 The plaintiff worked for Mr McEwan as a curtain fitter for four days but was unable to complete more work because of difficulties climbing up and down ladders and kneeling.
(13) Statement of Paul Sverma of 16 March 2012
168 Mr Sverma was aware of the plaintiff’s knee problem, which restricted him in his work driving a forklift and as despatch manager. At least half of his time on CHH was on a forklift. He was also required to walk hundreds of metres.
(14) Statement of Jethro McDonald of 16 March 2012
169 The plaintiff’s forklift duties at CHH were between 50 and 70 per cent of the time he was at work.
(15) Statement of Gareth Wallis of 16 March 2012
170 Approximately 40 per cent of the plaintiff’s time, if not more, was on a forklift.
171 According to the “discussion and summary”,[85] the defendant concluded that the cessation of the plaintiff’s work at CHH was not to do with his knee. In fact, the opinion states: “The cessation of work and subsequent absence from work has occurred for other than an injury or illness.” It notes there was no contemporaneous medical certificate certifying the plaintiff unfit for work as a result of his right knee condition. There is reference to the statement of Mr Beadles that the plaintiff had not made complaints to him about his right knee problem, was able to undertake all of his usual duties and that he was not aware of complaints to other employees. There is no attempt to reconcile what is said by Mr Beadles with the statements of various other employees, including Messrs Wallis, McDonald and Sverma. There is no clear explanation as to why the opinion of Mr Beadles is preferred.
[85]CB 535
172 There is reference to the opinion of Mr Simm that the plaintiff had a current work capacity and did not leave his employment as a result of his knee injury. There is no attempt to reconcile that opinion with the opinions of the treating orthopaedic surgeon, Mr Kiellerup, and the general practitioner, Dr McClelland, that the cessation of work was as a result of injury. It is said that those opinions conflict with the clinical notes. However, there is no attempt to carefully consider the reports of the two treating practitioners. Mr Simm had seen the plaintiff on one occasion only and for reason other than work capacity, and there ought be good reasons stated to reject the views of those treating practitioners.
173 Various inconsistencies in respect of the work the plaintiff was said to be performing both at Visy and CHH were noted.[86] In particular, those inconsistencies were said to relate to the component of the plaintiff’s forklift driving. The opinion said:
“However, as Mr Beadles was Mr Colella’s manager we are inclined to accept his reporting as being the most accurate. This percentage is also consistent with the information Mr Colella reported to Dr Horsley in the report of 4 November 2009.”
[86]CB 537-9
174 Aside from Mr Beadles being the manager, there is no basis upon which his opinion is to be preferred. In particular, there is no analysis as to the extent, in an average working day, Mr Beadles had the capacity to observe the plaintiff. There are apparently no further requests to the plaintiff or his solicitors to provide further information in that regard.
175 The opinion goes on:
“In addition Mr Colella reports being on his feet 95 per cent of the time and undertaking 70 per cent forklift driving. The percentage of these activities do not add up and raises doubt in the validity of the statements of Mr Colella.”[87]
[87]CB 539
176 This comment misunderstands the plaintiff’s statement. It was that he drove a forklift 70 per cent of the time, and with that and the time spent on his feet, it totalled 95 per cent of his work activities. It is inappropriate that this was a basis upon which to suggest the statements of the plaintiff ought not be accepted as valid.
177 According to the opinion,[88] there was a conflict between the various distances which the plaintiff was said to be able to walk during the course of his employment. These varied from 50 metres (at a maximum) in an email from CHH, whereas the plaintiff said he would walk 50 metres to a morning meeting and then various other distances throughout the day. This appears to be a matter of significance in the opinion. There is no detail as to how this disparity was resolved. There was no attempt to communicate with the plaintiff to have him explain the discrepancy. It was further said[89] that the surveillance film showed the plaintiff walking on uneven ground and capable of undertaking manual activities, including using a wheelbarrow and lifting bags. That statement is an incorrect assessment of the surveillance film. While the plaintiff does walk, he does so with a pronounced limp and slowly. It is difficult to see as to the state of the ground, but the manual activities he undertakes are modest.
[88]CB 539
[89]CB 540
178 The opinion further notes:
“In brief the medical evidence at the time the policy was on foot demonstrated that Mr Colella had a capacity to work. This is supported further by the activities he was observed undertaking on his farm in 2008. … In making this assessment we are not limited to only his job as a despatch manager at Carter Holt Harvey but the wider job market. We note from Mr Colella’s education, training and experience that he worked as a clerical assistant for VicRail. Even though it was some time ago he was exposed to clerical work and continued clerical work in his roles at Visy Board and Carter Holt Harvey. Mr Colella completed various short courses in health and safety, leadership and supervising. These are transferrable to many types of occupations. … .”[90]
[90]CB 543
179 There are many errors in the statement. A review of the medical evidence does not suggest that the plaintiff had a capacity for work. That is the opinion of Mr Simm only. It ignores the opinions of various other doctors and provides no basis upon which the conflict in opinions was reconciled. As earlier stated, the activities displayed in the surveillance video confirm the plaintiff’s disability and do not provide a basis upon which to suggest it supports work capacity. The reference to the plaintiff’s clerical role in VicRail was for a period of two weeks when he was in his late teens. It could not be used as any basis to suggest that the plaintiff had any experience or capacity in that role. The short courses referred to are minor and of little relevance in the job market.
180 Of significance is the failure of the opinion to refer to and analyse the reports of both Doctors Rowe and Horsley, each specialist rehabilitation and occupational physicians. Each note the plaintiff is suffering from a serious and debilitating degenerative condition in his knee. Each say that it will come to knee replacement. Both make reference for the need for the plaintiff to be retrained, Dr Horsley saying that this would occur after any knee replacement. There is no reference or consideration given in the opinion for the plaintiff to be retrained. As has been said by the authorities, if the plaintiff is to be retrained into another position, then he is not suited to that position by reason of his education, training and experience.
181 The opinion of the defendant fails to identify and consider any alternative occupations for which the plaintiff may be suited, given his injury. There is no assessment as to whether, in any such occupation, the plaintiff would require retraining. There is no enquiry as to what jobs exist in the real world to which the plaintiff would be suited by education, training and experience.
182 Having read the opinion, I am of the view that the defendant has “cherry picked” aspects of the medical reports, and statements most suited to its purpose. For example, the statement: “This demonstrates that Mr Colella did not report any knee problems and if he did his employer/manager would be more accommodating”[91] makes no reference to the complaints the plaintiff said he made, and the clear view of a number of co-workers who provided statements that they knew of his knee problem. By letter of 3 May 2012,[92] solicitors for the plaintiff pointed out a number of the inaccuracies and areas of dispute. The letter suggested there be some form of examination of Mr Beadles on the issues. The offer was apparently not taken up.
[91]CB 542
[92]CB 523
183 For all of the above reasons, the opinion of the defendant as to the plaintiff’s work capacity, under the second limb of the policy, is comprehensively flawed. To that extent, the opinion is unfair and unreasonable.
184 The authorities are clear that if the opinion of the insurer proceeded on an incorrect basis, or was otherwise flawed, the Court should proceed to determine the issue.[93]
[93]Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214 at paragraph [35]
185 For all of the reasons referred to above, I am of the view that the injury sustained by the plaintiff has disabled him from resuming his occupation now and will continue to do so into the future. The second limb of the definition within the policy is met.
186 The plaintiff’s case succeeds.
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