Lazarevic v United Super Pty Ltd

[2014] NSWSC 96

Supreme Court

New South Wales

Medium Neutral Citation:	Lazarevic v United Super Pty Ltd [2014] NSWSC 96
Hearing dates:	2 - 3 December 2013
Decision date:	20 February 2014
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	Direct the parties to prepare, within 10 days, short minutes to reflect and give effect to these reasons. Failing agreement on any aspect thereof (as to interest and costs), the Court will hear further argument at a convenient time to be arranged.
Catchwords:	Superannuation - Insurance - Claim for benefits - Superannuation trustee holding insurance policy covering total and permanent disablement of scheme members including Plaintiff - Whether Plaintiff totally and permanently disabled within the meaning of the relevant superannuation trust deed and insurance policy - Duty on a trustee of a superannuation fund in determining a claim for a benefit - Duty on an insurer in determining a claim for a benefit - Whether Plaintiff reasonably fitted by education, training or experience to carry out work - Whether insured able to engage in "regular remunerative work" - Review of decisions made by each of Trustee and Insurer
Cases Cited:	Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238; (2012) 7 ASTLR 117 Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 Chammas v Harwood Nominees Pty Ltd (1993) ANZ Ins Cas 61-175 Chapman v United Super Pty Ltd [2013] NSWSC 592 Cigna Life Insurance New Zealand Ltd v Rowles (High Court (New Zealand), Ellis J, 2 May 1997, unrep) Dargan v United Super Pty Ltd [2011] NSWSC 1316 Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115 Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300 Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57; (2013) 83 NSWLR 246 Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-123 Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325 McArthur v Mercantile Mutual Life Insurance Co Ltd [2001] QCA 317; [2002] 2 Qd R 197 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55 Oberlechner v Watson Wyatt Superannuation Pty Ltd [2007] NSWSC 906; (2008) 15 ANZ Ins Cas 90-134 Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 Vidovic v Email Superannuation Pty Ltd (Supreme Court (NSW), Bryson J, 3 March 1995, unrep)
Category:	Principal judgment
Parties:	Zoran Lazarevic (Plaintiff) United Super Pty Ltd (first Defendant) Hannover Life Re of Australasia Ltd (second Defendant)
Representation:	Counsel: Mr D Weinberger; Ms T Gordon (Plaintiff) Mr W McManus (Defendants) Solicitors: NSW Compensation Lawyers (Plaintiff) TurksLegal (Defendants)
File Number(s):	2012/286537

Judgment

Introduction

1. HIS HONOUR: The Plaintiff, Zoran Lazarevic, was working as a scaffolder when he was injured on 11 April 2008. Capital Scaffolding Pty Ltd (which had, by that date, been placed into liquidation) ("the Employer") had employed him since February 2001.

1. The first Defendant, United Super Pty Ltd ("the Trustee"), is the Trustee of the Construction and Building Unions Superannuation Fund ("the Fund"). By Declaration of Trust made 29 May 1984, the Trustee established, and administered, the Fund for the purpose of providing superannuation, and other, benefits for persons working in the building, construction and allied industries and their beneficiaries in the circumstances set out in the Fund's Trust Deed, as amended from time to time.

1. The Plaintiff became a contributing member of the Fund on about 7 January 2002 and was a member of the Fund at the date of his injury.

1. Under the Trust Deed, the Trustee agreed, relevantly, to pay a member a benefit if he, or she, became totally and permanently disabled whilst in employment. The Trustee had power to take out, and maintain, insurance in respect of its liability to make payments in accordance with the Trust Deed: clause 4.4(a). In exercise of that power, in the instant case, the Trustee had insured its liability to pay Total and Permanent Disablement ("TPD") benefits with the second Defendant, Hannover Life Re of Australasia Ltd ("the Insurer"), under a Group Life Policy VGL 4163 ("the Policy").

1. It was not in issue that the Plaintiff had standing to sue the Insurer even though it was a Group Life Policy.

1. The Plaintiff suffered injuries in connection with his employment, the most serious of which was an injury to his lower back, right hip, and right leg. Shortly thereafter, he made a claim for workers' compensation.

1. On or about 23 July 2009, the Plaintiff made a claim for TPD benefits pursuant to the Trust Deed. At various different times, to which I shall refer, the Trustee and the Insurer informed the Plaintiff that his claim was declined.

1. The Plaintiff, in these proceedings, seeks, amongst other things, a declaration that he is totally and permanently disabled within the meaning of the relevant definition of that term in the Trust Deed. He also seeks declaratory relief that he was entitled to TPD benefits, together with an order for the payment of those benefits.

1. There is no dispute that, if he did suffer TPD, the Plaintiff is entitled to $100,000 plus interest (although the date from which interest is to be calculated is in issue). The Plaintiff also seeks the costs of the proceedings in the event that he is successful.

1. The primary questions for determination are whether any of the Trustee's decisions could be vitiated for miscarriage of discretion or whether any of the decisions by the Insurer were invalid, in that it was unreasonable.

1. If the Court concludes that any of the decisions made by the Trustee can be vitiated for miscarriage of discretion, then, usually, it would remit the matter to the Trustee for reconsideration: Halloran v Harwood Nominees Pty Limited [2007] NSWSC 913, at [28]. In the event that the Court concludes that any of the decisions made by the Insurer was invalid, usually, it would substitute its own decision for that of the Insurer: McArthur v Mercantile Mutual Life Insurance Co Ltd [2001] QCA 317; [2002] 2 Qd R 197, at [62]. As was put by counsel for the Defendants (at T3):

"...we say if your Honour determines that there is no breach of duty or negligence on the part of the trustee and the insurer then that is it and that is your Honour's primary task, but if your Honour is to find that there was a breach of duty by, for example, the insurer the question would then be to an extent at large but your Honour would still be considering the question of whether this person was totally and permanently disabled as at 11 April 2008."

1. Thus, a key issue will be whether, as a result of the injuries sustained by him in April 2008, the Plaintiff suffered TPD within the meaning of the Trust Deed and the Policy.

Salient Facts

1. The Court was provided with a Statement of Agreed Facts that was tendered and marked as Ex. P1. I have used that document, as well as other evidence about which I am satisfied, as the basis for the following facts.

1. The Plaintiff was born in Bosnia in March 1970. In 1989, he completed school having obtained a trade qualification in forestry. He then commenced one year of compulsory military service. From about 1990 to 1993, he worked on a fruit farm, in Bosnia, driving a tractor. He then worked as a tree feller from about 1994 to 1998 in Bosnia. He then returned to work, for about 2 years, as a tractor driver in Bosnia.

1. In November 2000, the Plaintiff arrived in Australia.

1. The Plaintiff's work with the Employer involved heavy work as a scaffolding fixer. Essentially, this work consisted of erecting and dismantling scaffolding, often, on multi-storey construction projects. The "work involved heavy lifting and carrying, working at heights, working for long periods above shoulder height, repetitive bending, stretching, stooping and crouching, as well as using heavy tools and equipment". His usual hours of work were between 7:00 a.m. and 3:00 p.m. on Monday to Friday.

1. It was necessary, in carrying out his work, for the Plaintiff to manhandle steel, timber planks and other building materials and also to use drills, grinders and other power tools as required.

1. Instructions at work were given to him in the Serbian language as the persons who gave those instructions were Serbian, and there were many other Serbian employees.

1. Even though it went into liquidation on about 28 October 2007, the Plaintiff continued to work with the Employer (through the liquidator) until his injury in April 2008. There is no evidence that he had suffered any prior injury in connection with his employment with the Employer.

1. On the day he sustained his injury, the Plaintiff was working on a building site at Little Bay, in Sydney. His work, on this day, involved dismantling the scaffolding, which consisted of a series of interlocking metal supports with metal planks. During the course of his work, and as he was lifting one of the metal planks, he felt a sharp pain in his back. He stopped work immediately, as he was unable to continue. He rested over the weekend and saw his general practitioner, Dr Predrag Tomasevic, on the following Monday. Subsequently, in May 2008, he was referred to an orthopaedic specialist, Dr Peter Giblin.

1. The Plaintiff lodged a claim for workers' compensation on about 9 May 2008. He received compensation payments from the workers' compensation insurer.

1. The Plaintiff did not work in the 6 months following 11 April 2008 and has not worked, otherwise, since then.

1. The Employer's last payment of an employer contribution into the Plaintiff's account in the Fund was for 30 May 2008.

1. In about June 2009, the Plaintiff "enquired about an insured Total and Permanent Disablement (TPD) benefit". (The Plaintiff says that he was unaware of his rights to claim those benefits until shortly before he made the claim.) By letter dated 26 June 2009, the Trustee, through a "Claims Assessor", wrote to him enclosing a brochure headed "TPD - How to Make a Claim", which brochure "provided some general information about how the claim process works".

1. The document from the Trustee also stated that, after receipt of the documents required, the documents would be "checked to ensure you are eligible to make a TPD Application (and have provided all requested information), then forwarded to the Insurer for the assessment of your claim".

1. By document headed "hannover life re Total and Permanent Disablement Claim - Member Statement", dated 20 July 2009, the Plaintiff made a claim for a disability benefit. In this document, he asserted that he was "unable to lift anything over 5 kg, which in turn prevents me from building and stripping scaffolds". The Plaintiff set out his occupational history as well as his education, training and experience. The training set out was "OHS Certification Australia - SB Basic Scaffolding".

1. On or about 31 July 2009, the Trustee received these documents.

1. The Trustee obtained a "Confidential Medical Report" dated 28 July 2009 from Dr Tomasevic, who certified that he had personally attended on the Plaintiff and that all of the information supplied in that Report was true. I shall return to the detail of that report later in these reasons.

1. On or about 3 August 2009, the Trustee received the "Employer's Statement in connection with a claim for a Disablement Benefit", which confirmed that the Plaintiff's last day at work was "April 2008"; that the Plaintiff's precise duties were that of a "scaffolding fixer"; and that he held a scaffold licence.

1. By letter dated 1 September 2009, the Trustee sought further information from the Plaintiff, which request was responded to by the Plaintiff by letter dated 14 September 2009. The Plaintiff confirmed, amongst other things, that he had not been provided with "light duties" by the Employer (as none existed for his limited skills) and that he had not undergone any vocational assessment.

1. Under cover of a letter dated 17 December 2009, the Trustee forwarded to the Insurer its "Group Life Assessment Summary", as well as "the relevant documentation (including medical evidence)" pertaining to the Plaintiff's claim. It requested the Insurer to "assess this claim as soon as is possible and provide us your assessment decision at your earliest convenience".

1. By letter dated 20 January 2010, the Trustee informed the Plaintiff that the Insurer required him to attend "an independent medical examination" on 22 February 2010, by Dr Alan Home (Occupational Physician). He was also informed that a Serbian interpreter would be present at the appointment.

1. In fact, the letter referring the Plaintiff to Dr Home, also dated 20 January 2010, was written by a "Claims Officer, Cbus Administration". In that letter, Dr Home was provided with a summary of the Plaintiff's past employment experience, which was stated to be "tractor driver - from 1990-1992 (in Serbia), tree chopper - from 1994 - 1995 (in Bosnia), tractor operator - from 1995 - 2000 (in Bosnia) ... and scaffolder from February 2001 - April 2008".

1. As will be referred to later, Dr Home provided a report dated 24 February 2010, which was received by the Insurer on about 5 March 2010.

1. By letter dated 28 July 2010, the Insurer wrote to the Trustee acknowledging the receipt of documents, including a copy of the various medical reports that had been obtained in 2010, and requiring the Trustee to provide to the Plaintiff a copy of the letter, which letter identified certain matters that the Plaintiff was required to establish, and which stated that these were being sent "to ensure that the member is afforded procedural fairness" and to enable him to furnish any additional comments or information.

1. By letter dated 4 August 2010, the Trustee informed the Plaintiff that the Insurer "is in the process of deciding whether you satisfy the definition of Total and Permanent Disablement under the Policy" and required him to submit "any further evidence in regards to your claim".

1. The Plaintiff did not provide any further evidence in response to the request made.

1. In a letter dated 13 September 2010, the Insurer stated "after reviewing all available evidence, we are of the opinion that Mr Lazarevic is not totally and permanently disabled within the policy definition" and went on to provide:

"On balance, the member is not considered to be Totally and Permanently Disabled and the majority of the medical reports on file demonstrate that the member retains a work capacity for work in alternate and restricted duties as a process worker, Crane operator, and Forklift operator.

The onus of establishing an entitlement to the total and permanent disablement benefit rests with the member. The evidence does not persuade Hannover Life Re to reach an opinion that the member is totally and permanently disabled in line with the policy definition."

1. On 23 September 2010, an "assessor" on behalf of the Trustee prepared a report which concluded:

"The medical evidence to hand does not support a total and permanent disablement. We agree with HLRA's decision to deny this claim".

1. Despite the above statement, on 24 September 2010, the assessor sought a review of the claim and sought to have "the Fund's decision regarding the assessment made by the Insurer".

1. By letter dated 8 October 2010, addressed to the Plaintiff, the Trustee declined the Plaintiff's claim, stating that "[a]fter consideration of the evidence obtained, the Trustee resolved on 29 September 2010 that you did not meet the definition of Total and Permanent Disablement". (The letter stated, also, that the Insurer "advised that on assessment of the information provided, your claim for a Total and Permanent Disablement benefit has been denied".)

1. The letter went on:

"In particular, when reviewing all the information [the Insurer] noted that there is medical consensus that you are permanently unfit to return to work as a Scaffolder, however you retain a capacity for alternative employment within the scope of your previous education, training or experience."

1. The information leading to the conclusion regarding his retained capacity based upon "previous education training and experience" was not specifically identified. The deliberations of the Trustee, otherwise, were not the subject of evidence.

1. I shall refer to this decision as "the Insurer's first decision" and "the Trustee's first decision" respectively.

1. Through his then solicitors, the Plaintiff, by letter dated 8 December 2010, made a request to the Trustee for reconsideration of the claim. The solicitors made "comments/submissions in support of" the reconsideration and provided a copy of a further medical report dated 10 February 2009 of Dr Ian Collins.

1. The Trustee acknowledged receipt of the solicitors' letter and copy report by letter dated 13 January 2011. It confirmed that it provided a copy thereof to the Insurer "for their [sic] assessment".

1. By letter dated 3 February 2011, addressed to the Trustee, the Insurer maintained its decision to decline the Plaintiff's claim and stated that "our letter 13/09/2010 stipulates the reasons for our decision". It repeated also what had been stated previously regarding the "onus" of establishing an entitlement to the TPD benefit resting with the member. I shall refer to this as "the Insurer's second decision".

1. The Trustee is said to have considered the correspondence from the Plaintiff's solicitors and the Insurer's "reassessment of the claim" and its maintenance of the prior opinion. The "Re-assessment", dated 24 February 2011, referred to the additional medical evidence provided by Dr Collins and the correspondence from the Plaintiff's solicitors. The same assessor concluded:

"The further evidence provided by the member's solicitors from Dr I Collins also supports that, with appropriate rehabilitation [the Plaintiff] could return to lighter forms of employment. We acknowledge that Mr Lazarevic is unable to return to his pre-injury occupation as a Scaffolder or any other heavy manual occupation. However, there is medical consensus that Mr Lazarevic does retain a capacity for alternative part time employment within his previous education training and experience. Thus, he does not satisfy the TPD definition under the Fund's Policy.

Mr Lazarevic has previous employment experience as a Forklift Driver and the evidence supports that this occupation would be in line with his medical restrictions. On the basis of all the information presented, we agree with HLRA's decision to maintain denial of this claim."

1. By letter dated 24 February 2011, the claims assessor informed the Plaintiff's solicitors that the Insurer has "now finalised their [sic] re-assessment of this claim and remain of the opinion that your client is not totally and permanently disabled as defined in the Fund's Insurance Contract" and that the claim would be "referred to the Fund's Trustee for review."

1. By letter dated 1 April 2011, the Trustee informed the Plaintiff's solicitors that it had considered the letter of 8 December 2010 and the copy medical report of Dr Collins. The Trustee maintained that the Plaintiff "does retain a capacity for alternative part-time employment within his previous education, training and experience", that he "has previous employment experience as a Forklift driver ..." and that the Trustee, having reviewed all of the information, "on 21 March 2011 ... resolved that your client's claim remains declined". I shall refer to this as "the Trustee's second decision".

1. Once again, the deliberations of the Trustee, otherwise, were not the subject of evidence.

1. The Plaintiff, by his solicitors, then made a further request for reconsideration by letter dated 5 August 2011, supported by an additional report dated 21 June 2011, from Dr Collins.

1. The Insurer, by letter dated 2 September 2011, reviewed what had occurred, including the additional report of Dr Collins and maintained its previous decision to decline the Plaintiff's claim for the reasons stipulated in its letter of 13 September 2010. In particular, it stated that "the member is not considered to be totally and permanently disabled and the majority of the medical reports on file demonstrate that the member retains a work capacity for work in alternate and restricted duties as a process worker, Crane operator, and Forklift operator."

1. The letter also stated that the "additional evidence that is dated over 3 years from the date last worked does not persuade Hannover Life Re to reach an opinion that the member is totally and permanently disabled in line with the policy definition". I shall refer to this as "the Insurer's third decision".

1. The Trustee is said to have considered the correspondence from the Plaintiff's solicitors and the Insurer's "reassessment of the claim" and its maintenance of the Insurer's prior opinion. The "Re-assessment", dated 28 September 2011, referred to the additional medical evidence provided by Dr Collins and the correspondence from the Plaintiff's solicitors. A different assessor concluded:

"The new medical evidence submitted by the member's solicitors from Dr Collins which is dated some 3 years from the date last worked also advocates that [the Plaintiff] probably could work in a yard for certain periods of time but it would depend on what he wants to do and how his back is behaving.

We acknowledge that Mr Lazarevic is unable to return to his pre-injury occupation as a Scaffolder or any other heavy manual occupation. However, there is medical consensus that Mr Lazarevic does retain a capacity for alternative part time employment within his previous education training and experience. Thus, he does not satisfy the TPD's definition under the Fund's Policy."

1. The Plaintiff's solicitors, by letter dated 15 November 2011, were advised of the Insurer's third decision, of the Trustee's review of the additional information and report that had been provided, and that "the Trustee resolved on 2 November 2011 that the decision to deny your client's claim remains unchanged". I shall refer to this decision as "the Trustee's third decision".

1. The Plaintiff commenced the proceedings by Statement of Claim filed 14 September 2012. The Trustee filed its Defence on 16 May 2013 and the Insurer filed its Defence on 4 April 2013.

The Trust Deed

1. The Trust Deed, as amended on 31 March 2008, relevantly provided that the Fund vested in the Trustee and comprised "all moneys, Policies, and other assets and investments held by the Trustee in accordance with the Deed ...": clause 4.1.

1. Reference was earlier made to clause 4.4(a) of the Trust Deed. Clause 4.4(b) provided that "the Trustee shall pay all premiums, and receive from the Insurer all payments, refunds and other moneys, in respect of the Policy and shall dispose of all moneys so received in accordance with the Deed".

1. Clause 5.1(a) of the Trust Deed provided that, subject to the Deed and the Relevant Law, the Benefits of the Fund only became payable on the happening of the events prescribed in that Clause. This required the Trustee to make its own decision on the question whether a Benefit was payable and on the amount, form and application of any Benefit.

1. Clause 5.2 of the Trust Deed provided that "[e]very person in receipt of, or claiming, a Benefit from the Fund, shall produce to the Trustee such information and evidence as the Trustee may require in order to satisfy itself that the Benefit is properly payable in accordance with the Deed and the Trustee may withhold or suspend payment of that Benefit or refuse to consider any claim ... until such time as that person provides such information and evidence to its satisfaction".

1. Clause 5.12 provided:

"Subject to this Deed, the Benefit payable to a Member who ceased to be Gainfully Employed prior to attaining age 65 having suffered Total and Permanent Disablement shall be the sum of:

(a) the Member's Retirement Credit; and

(b) the amount of any Insured Benefit, if any, provided in respect of the Member."

1. There was, in fact, no sum attributed to "the Member's Retirement Credit" but the amount of the Insured Benefit provided, in respect of the Plaintiff, was $100,000.

1. Clause 7.2 contained certain definitions. Relevantly, "Insurer" was defined as meaning "any insurer with whom the Trustee effects a Policy or Policies". "Policy" was defined as meaning "any policy of assurance including a policy on the life of a Member for endowment, term, disablement (including without limitation Temporary Incapacity or Total and Permanent Disablement) ... effected either as an individual policy or as a group policy ...". "Insured Benefit" meant "the proceeds of any Policy effected by the Trustee ... in respect of the disablement (including without limitation ... Total or Permanent Disablement) of a Member".

1. There was a definition in the Trust Deed of "Total and Permanent Disablement" (clause 7.2) which provided:

"'Total and Permanent Disablement' means disablement of a Member resulting from an illness, accident or injury to the Member which commenced or occurred whilst a Member and as a result of which:

(a) the Member has been precluded for a period of six consecutive months after the date of occurrence of such event from following any occupation for which the Member is reasonably suited by education training or experience; and

(b) the Member will, in the opinion of the Trustee after consideration of medical evidence satisfactory to it, continue to be so disabled to such an extent as to render the Member unlikely ever again to resume work in or attend to any such occupation;

and 'Total and Permanently Disabled' shall have a corresponding meaning but where at any time, all or part of the Benefit payable in the event of Total and Permanent Disablement as an Insured Benefit, the term 'Total and Permanent Disablement' shall bear the meaning ascribed to it in the relevant Policy in lieu of the above definition; ..."

The Policy of Insurance

1. The Policy was a contract of insurance which commenced on 1 April 2002, as varied from time to time. It contained current terms and conditions effective from 27 November 2006, and which had not been properly terminated at the date the Plaintiff was injured: the Preamble to the Policy.

1. In clause 1.2, the Insurer agreed, that if the cover was in force under the Policy when an insured person suffered Total and Permanent Disablement, it must pay the Agreed Benefits.

1. The Policy, relevantly, provided in clause 1.3, after the sub-heading "What is Total and Permanent Disablement" in respect of an Insured Person who was gainfully employed within the six months prior to the Date of Disablement:

"1.3.1 the Insured Person is unable to follow their usual occupation by reason of accident or illness for six consecutive months and in our opinion, after consideration of medical evidence satisfactory to us, is unlikely ever to be able to engage in any Regular Remuneration Work for which the Insured Person is reasonably fitted by education, training or experience".

1. The Policy, relevantly, provided in clause 1.6, after the sub-heading "Amount of Agreed Benefit on Death, Total and Permanent Disablement or Terminal Illness":

"1.6 The Agreed Benefit that we must pay is the amount for which cover is in force under The Policy:

...

1.6.2 on the Date of Disablement, if the claim is for Total and Permanent Disablement...".

1. Clause 6 of the Policy, relevantly, provided:

"6.1 Our obligation to pay a benefit is subject to:

6.1.1 written notice of any claim or potential claim being given to us as soon as reasonably possible. This notice may be in a form of our choosing; and

6.1.2 proof that the relevant event has happened being provided to our satisfaction; and

6.1.3 if the claim arises from a Terminal Illness or from Total and Permanent Disablement, the Insured Person attending any medical examinations which we may arrange at our discretion; and

6.1.4 the evidence listed in clause 6.3 that must be provided, at no expense to us, if we require it.

...

6.3 If we require evidence to assess whether we are liable to pay a claim we must pay the costs of obtaining that evidence except for:

6.3.1 proof of the date of birth of the Insured Person; and

6.3.2 an initial medical report which must be supplied in support of any claim for Total and Permanent Disablement. We will require this report to be given in a form of our choosing; and

6.3.3 the TIB Specialist Report which must be supplied in support of any claim for Terminal Illness. We will require this report to be given in a form of our choosing; and

6.3.4 a copy of a death certificate which must be supplied in support of any claim for death; and

6.3.5 evidence the Fund requests us to obtain unless our prior approval is given and;

6.3.6 travel and/or accommodation expenses incurred in obtaining medical evidence, unless our prior approval is given;

which must be provided at no expense to us. In respect of clauses 6.3.5 and 6.3.6 we will not request the Fund to incur any costs without their prior approval.

6.4 If we arrange for the Insured Person to be medically examined in connection with a claim:

6.4.1 the person who examines the Insured Person may be any appropriate registered medical practitioner or other health care practitioner chosen by us in our discretion; and

6.4.2 we must pay the practitioner's fees; and

6.4.3 subject to privacy laws, we will treat the contents of the practitioner's report as being confidential to us and if we agree to provide a copy of the report to the Fund we will also require the Fund to treat the report as confidential and subject to privacy [and] any other laws.

6.5 If we arrange for the Insured Person to be medically examined and they fail to attend the examination and we incur a non-attendance fee the Insured Person must pay us this fee, unless we agree otherwise.

6.6 If we are requested to review a claim on which we have made a decision, we will take into consideration that request and either agree to review or deny reviewing. If we deny reviewing the claim, we will articulate our reason. If we agree to review the claim based on additional information served by the Insured Person or the Fund, we will not pay for this additional information. Where we agreed to review the claim and have instigated our own medical or other evidence, or agree to the Fund's recommendation that additional evidence be obtained, we will pay for the cost of obtaining such evidence.

...

6.8 We must pay any benefit to the Fund or to the person the Fund instructs us to pay it to.

When we follow the Fund's instruction to pay a benefit to someone else, the payment to them discharges our liability just as if the payment had been made to the Fund. ..."

1. The Glossary to the Policy provided relevant definitions, which definitions included:

"Date of Disablement

Total and Permanent Disablement is treated as having occurred on the Date of Disablement which is the earlier of:

(a) the date on which the six (6) months consecutive inability to work that results in Total and Permanent Disablement began; or

(b) the date on which the six (6) months consecutive inability to perform the Activities of Daily Living or Home Duties that results in Total and Permanent Disablement began; or

(c) ...

(d) ...

Insured Person means an Eligible Person for whom cover is in force.

Regular Remuneration Work

[A]n insured Person is engaged in regular remunerative work if they are doing work in any employment, business, or occupation. They must be doing it for reward - or the hope of reward - of any type.

Total and Permanent Disablement means either of the conditions described in clauses 1.3 and 1.4."

1. It can be seen from the above that the TPD benefits would become payable under the Fund where the Trustee had exercised its discretion to secure appropriate insurance and the Plaintiff, as a member of the Fund, came within the definition of 'totally and permanently disabled' under that Policy.

Some Further Undisputed Facts

1. The following facts are also uncontroversial:

(a) The Trustee gave written notice of the claim to the Insurer as soon as reasonably possible and there was proof that the relevant event happened.

(b) The Group Life Contract was an agreement to pay benefits to the Trustee or "to the person the Trustee instructs us to pay it to".

(c) The Plaintiff was unable to follow his usual occupation by reason of accident for six consecutive months.

(d) The relevant definition of total and permanent disablement then required the Insurer to form an opinion, after consideration of satisfactory medical evidence, on the question whether the Plaintiff was unlikely ever to be able to engage in Regular Remuneration Work as defined, for which he was reasonably fitted by education, training or experience.

(e) There is no evidence that the Plaintiff, at the date of suffering the injury, held the "licence [required] to perform high risk work to operate certain types of forklifts", including a "forklift truck", being a "powered industrial truck equipped with a mast and an elevating load carriage to which is attached a pair of forkarms or other attachment", or of having undergone relevant training to enable him to obtain such a licence.

(f) The "Agreed Benefit" was the amount of cover that was in force as specified in the Policy. In this case, it was $100,000.

The Medical Evidence

1. There were a number of reports relevantly before the Trustee and before the Insurer, a copy of which was included in the Agreed Bundle of Documents that was tendered (Ex. P2). None of the doctors was cross-examined. Each counsel referred me to relevant parts of the medical reports upon which they, or he, relied and I was provided with a summary of the medical evidence by the Plaintiff. I have used that summary (which was not suggested to be inaccurate) and have supplemented it where appropriate, to set out, hereunder, the substance of the medical reports obtained at various times before the decisions made by the Trustee and by the Insurer. (It is not necessary to set out the medical reports in more detail even though I have carefully read them in coming to my determination.)

Date	Doctor	Report
8 October 2008	Vladimir Colovic, Physiotherapist	Reports on functional status: maximum sitting tolerance for 1.5 hours with pain occurring after 30 minutes; maximum standing and walking tolerance, each for 45 minutes with pain after 30 minutes, driving for up to 30 minutes. "Unfit for pre-injury duties".
27 May 2009	Dr Vijay Panjratan, Orthopaedic Surgeon	Report prepared for QBE Workers' Compensation. Notes that Plaintiff "would like to work as a forklift driver but does not have the licence". Diagnosis identified as "multilevel disc degeneration with a disc prolapse at L5/S1". Condition is now stable and further change is not expected and has reached maximum medical improvement. Does not consider the Plaintiff to be fit for his pre-injury duties.
28 July 2009	Dr Pedrag Tomasevic, General Practitioner	Work related injury has caused chronic and severe pain in lower back. Unable to perform any duties of his current employment. Will never be able to do a job for which he is reasonably fitted by education training or experience due to injury.
10 February 2009	Dr Ian S Collins	The Plaintiff is not fit for pre-injury occupation due to his accident. His condition has stabilised, although if he develops very troublesome sciatica he may have to reconsider the possibility of surgery. He needs to have rehabilitation for a lighter occupation and also for increasing his English skills, which are limited.
12 November 2009	Dr Peter Giblin, Orthopaedic Surgeon	First consulted on 13 May 2008 (within 1 month of accident) at the request of Dr Tomasevic. Low back pain resulting from workplace accident. Assess him as being permanently unfit for heavy repetitive bending, lifting and twisting, or associated labouring duties and permanently unfit to ever return to work as a scaffolder or for any similar occupation. Injury will permanently restrict his ability to seek unrestricted employment in the general workforce. Whilst surgery not mandated at this point, cannot be excluded in the future.
24 February 2010	Dr Alan Home, Occupational Consultant	Consulted on 22 February 2010 at the request of the Trustee. Plaintiff complained of constant low back pain of moderate severity. Clinical presentation consistent with mechanical low back pain arising due to L4/L5 disc pathology, superimposed on underlying degenerative disc changes noted at the L2/L3, L3/L4 and L4/L5 levels on MRI scanning. Currently the Plaintiff is unfit to work as a scaffolder on a full, or part-time, basis; he is unfit to undertake the manual handling requirements and general climbing and lifting components required of a scaffolder. He is unlikely to cope with the physical requirements of work as a scaffolder, which include repetitive bending, heavy lifting, twisting, and turning of the spine under load. Vocational goals for rehabilitation have included process work, crane or hoist operator and forklift operator. He is currently fit to perform part-time work of a sedentary, or semi-sedentary nature. Would be able to undertake work up to 20 hours per week given the opportunity to alter his posture during the working day. Reviewing his education, training and experience, he is fit to work part-time as a forklift driver subject to restrictions: standing for up to 60 minutes, sitting for up to 60 minutes, travelling for up to 60 minutes, avoid repetitive twisting of the spine, limits on lifting. Could feasibly work as a forklift operator in a factory undertaking a mixed receivals and despatch role. Noted that he does not currently possess a forklift licence. Unlikely that he will gain sufficient recovery to allow a return to work as a scaffolder. Unsuited to work that involves exposure to whole body low frequency vibration such as work as a tractor operator or work as a forklift operator in a yard. Would recommend line of vocational rehabilitation be supported for a further 12 months prior to further consideration of his eligibility for Total and Permanent Disablement.
8 July 2010	Dr Peter Giblin, Orthopaedic Surgeon	The Plaintiff has reached maximum medical improvement. Could work for up to 20 hours per week with appropriate physical restrictions, excluding scaffolding and preceded by the appropriate vocational rehabilitation.
21 June 2011	Dr Ian S Collins	Recent MRI report shows multi-level degenerative changes within the lumbar spine, which has progressed as compared with 2008 particularly at the L4-L5 level. The Plaintiff said that he was unable to do forklift driving, which would require him to rotate his body, which he is unable to do, and that there would be vibrations that would affect his back. He still does not have a forklift licence. Diagnosis made of prolapse of disc L4-L5 with nerve root pressure on the right. There is prolapse also with other discs. General condition is worse than in 2009. It is unlikely that he will ever be able to work again in a job for which he is reasonably qualified by education, training or experience. Disagrees with opinion that the Plaintiff would be able to work up to 20 hours a week with restricted duties.

1. Neither the Trustee nor the Insurer sought any further report from Dr Home, despite his reference to reconsideration of the Plaintiff's eligibility for TPD. Nor is there any suggestion that Dr Home was asked to further consider the other reports following the receipt of each of them.

1. I should refer to a report dated 26 February 2013, of Dr Drew Dixon, a Consultant Orthopaedic Surgeon, that was tendered on the question of the Plaintiff's capacity if the decision were being made as at the date of hearing. In this report, Dr Dixon regarded the Plaintiff as having "jarred his back and sustained a severe back strain". He states that "[he] has been precluded from working for a minimum period of six consecutive months after the date of his injury...and he continues to be so disabled to such an extent as to render him unlikely to ever again resume work or attend to any such occupation such as those of a scaffolder."

1. In Dr Dixon's report, there is also a reference made to the Plaintiff's workers' compensation insurer, QBE, "trying to find alternative duties through MEND" and that the Plaintiff "has been unsuccessful in his bid to return to work due to ongoing back pain".

The Plaintiff's Oral Evidence

1. The Plaintiff was cross-examined by counsel for the Defendant. He gave evidence through an interpreter. It was not suggested that he did not need an interpreter, although he was asked questions about his ability to understand the English language.

1. (It is to be noted that each of the two affidavits sworn by the Plaintiff and read in the proceedings, contained a statement that an identified interpreter who understood the English language and the Serbo-Croatian language had truly interpreted the contents of the affidavit and the oath to the Plaintiff.)

1. It was put to the Plaintiff that he was sufficiently fluent in English to follow road signs and to have taken instructions given to him in English during the period of his employment. He gave evidence that when he sat for his driver's licence, he took the examination in the Serbian language and that he had always worked with "our people", who I understood to mean persons who spoke Serbian and who were able to translate instructions from English into the language understood by the Plaintiff.

1. There were questions asked of the Plaintiff relating to the work that he had performed following the commencement of his employment with the Employer. It was suggested to him that during a period of about 6 months, he had driven a forklift.

1. The Plaintiff said that, prior to his working as a scaffolder with the Employer, he had worked "in the yard" for about two or three months, following which he went onto a construction site. There was a forklift in the yard. Whilst working in the yard, his work was to prepare the scaffolding for other workers who would load that scaffolding onto the forklift. He said "[t]he person who drove the forklift gave it to me to try it out and use it".

1. The Plaintiff specifically denied that he had "approximately six months experience driving a forklift in the warehouse of Capital Scaffolding". The following exchange then took place:

"Q. You accept that you had two to three months experience driving a forklift?

A. INTERPRETER: I best explain it for you like this: My job at the yard was to prepare the scaffolding material for a person who was going to load it onto a truck by way of a forklift. Sometimes I would actually use the forklift. Maybe in that period I used it about 20 times, let's say, in that period of three months."

1. There was no further investigation on the length of time that, or the circumstances in which, he had driven the forklift on each occasion.

1. It was accepted by the Plaintiff, that, since 2010, his condition had worsened. It was also put that, in 2010, he would have been able to, and even now, he could, drive a forklift. He denied he would have been able to do so at any time following the injury suffered in April 2008. He said that it was not easy to drive a forklift; that it vibrates when it is driven; that his lower back could not stand, and could not have stood, the vibration; that he would have to get up and down off the forklift (presumably into, and out of, a cramped space), which he would, now and then, have found difficult; that he would not have been able to, and could not now, sit on the forklift for any length of time; and that he would find it was hard to turn around in the forklift.

1. Having observed the Plaintiff give his evidence, I am satisfied that he gave all of his evidence truthfully and that what he stated about having driven a forklift, and the difficulties that he would experience driving a forklift after he sustained the injury, was an accurate depiction of the difficulties that he would have had to face then, and now, in driving a forklift.

The Defendant's Evidence

1. There was no evidence relied upon by the Defendants until the morning of the hearing. The Trustee did not call any evidence from either of the assessors to whom reference has been made or from any of the directors of the Trustee.

1. On the morning of the hearing, the Defendants sought to read an affidavit, sworn by Ms Elizabeth Esber, a solicitor at the firm of the solicitors acting for the Defendants. Although there was an initial objection to the affidavit, I allowed the affidavit to be read upon the basis that the Plaintiff's counsel could consider whether they wished to maintain the objection.

1. The affidavit contained a copy of an email dated 29 November 2012 relating to a "forklift training course". The email referred to a two day course "consisting of... [one day] full training on theory and practical - 7:30 a.m. - 3 p.m." and a second day "course qualifying and assessment - 7:30 a.m. to completion (approx 4 p.m.)". It also refers to a three session evening course, the first session being approximately 4 hours consisting of theory and a practical demonstration (with study overnight); a second session, which is course qualifying, consisting of a preliminary test with a trainer; and the third session for Workcover testing. The cost of the two day course was $395. The cost of the evening course was $375.

1. There was annexed to the affidavit a copy of a brochure setting out, in more detail, various forklift training courses.

1. There was no evidence at all that the Plaintiff would be able to complete any of the courses referred to.

The Plaintiff's Submissions

1. The Plaintiff's submissions may be summarised as follows:

(a) Each of the Trustee's, and the Insurer's, decisions to reject the Plaintiff's claim for the payment of the benefit is void because each breached its duties to the Plaintiff in considering his claim.

(b) The Trustee had a duty to inform itself, properly, of the relevant facts prior to making each of its decisions, such that it would be a breach of that duty to fail to seek relevant information in order to resolve conflicting bodies of material: Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254, at [66]. Any decision by the Trustee was required to be reasonable in all of the circumstances, or, in other words, was required not to be so unreasonable that a reasonable person in that situation could not have made it: Chapman v United Super Pty Ltd [2013] NSWSC 592, at [53]. Furthermore, the Trustee had an obligation to act in good faith in considering the Plaintiff's claim, as well as an obligation to act on a real and genuine consideration of the material before it and for sound reasons: Chapman v United Super Pty Ltd, at [64] and [68].

(c) In determining whether an insured person was totally and permanently disabled, the Trustee and the Insurer was each required to consider the Plaintiff's existing training, education and experience, and to take a realistic and common-sense approach to the question, including the question of whether he was realistically likely to obtain the work that he might be able to undertake: Oberlechner v Watson Wyatt Superannuation Pty Ltd [2007] NSWSC 906; (2008) 15 ANZ Ins Cas 90-134 at [39], [40], [55], [64] (Hamilton J); Halloran v Harwood Nominees Pty Ltd, at [76] (Brereton J) .

(d) The Insurer owed the Plaintiff an obligation of good faith in considering his claim: Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-123 at [47], [56], [72] (Santow JA) with whom Spigelman CJ and Tobias JA agreed. This obligation required the Insurer to act reasonably in considering that claim and to consider and determine the correct question: Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115, at [53] (Ball J).

(e) The Trustee rejected the Plaintiff's claim on the basis that there was "medical consensus" that he retained a capacity for alternative part-time employment within his previous education, training and experience.

(f) The Insurer rejected the claim on the basis that the "majority" of the medical reports demonstrated that the Plaintiff retained a capacity to work as a process worker, crane or hoist operator and forklift operator.

(g) The Trustee should not have formed the opinion that there was "medical consensus" that the Plaintiff retained a capacity for alternative part-time employment within his previous education, training and experience in circumstances where:

(i) Dr Tomasevic's report concluded that the Plaintiff would never be able to do a job for which he is reasonably fitted by education, training or experience due to his chronic persisting symptoms resulting from his injury; and

(ii) Dr Collins' concluded:

(a) In his first report, that the Plaintiff would need to have rehabilitation for a lighter occupation; and

(b) In his second report, that it was unlikely that the Plaintiff would ever be able to work again in a job for which he is reasonably qualified by education, training or experience.

(h) Each of the Trustee and the Insurer was not permitted to take into consideration the light duties suggested by Dr Collins in determining whether the Plaintiff was totally and permanently disabled: Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173, at [58] (McDougall J); Halloran v Harwood Nominees Pty Ltd, at [84].

(i) There was, therefore, by no means a "consensus" that the Plaintiff retained a capacity for alternative part-time employment within his previous education, training and experience.

(j) Furthermore, it was entirely inaccurate for the Insurer to conclude that the majority of the medical reports demonstrated that the Plaintiff retained a capacity to work as a process worker, crane or hoist operator and forklift operator.

(k) Dr Home did not conclude that the Plaintiff could work as a process worker or crane or hoist operator or forklift operator. Rather, he noted that these occupations were "vocational goals" identified by the Plaintiff's rehabilitation provider and recommended that this line of vocational rehabilitation be supported for a further 12 month period prior to further consideration of the Plaintiff's eligibility for TPD. He described these goals as "feasible directions for rehabilitation".

(l) Even if Dr Home did state that the Plaintiff could work as a forklift operator for 20 hours per week, that work was subject to certain restrictions. Dr Home accepted that the Plaintiff could not rotate his body and that the vibrations would affect his back, but did not appear to take these factors into account in stating the conclusion, other than by noting that the Plaintiff would not be able to drive a forklift in the yard (over rough terrain).

Dr Giblin agreed with this conclusion, subject to appropriate restrictions and if it were preceded by appropriate vocational rehabilitation.

(m) To the extent that Dr Home did state that the Plaintiff could work as a forklift driver, Dr Home did not adopt a realistic or common-sense approach to the question that was asked. That the Plaintiff would be able to obtain work with the restrictions acknowledged by Dr Home was also unrealistic. Dr Home suggested that the Plaintiff was unsuited to work that involved exposure to whole body low frequency vibration, such as work as a forklift operator in a yard but maintained that he could work as a forklift operator in a factory without identifying any reason why he could withstand the vibrations caused by a forklift in a factory but not in a yard.

(n) There was, nevertheless, no majority of medical opinion in favour of the view that the Plaintiff could work for 20 hours per week, as both Dr Tomasevic and Dr Collins took a different position.

(o) Dr Collins' report confirmed that the Plaintiff had stated that he could not work as a forklift operator due to his inability to rotate his body and because the vibrations would affect his back.

(p) Each of the reports of Dr Collins and of Dr Giblin stated that the Plaintiff's condition had reached maximum medical improvement. Dr Home suggested that the Plaintiff's condition would improve sufficiently for him to work, in the future, as a truck driver, forklift operator, or as a light yardman. This suggestion was not supported by the weight of the other medical evidence.

(q) It was known that the Plaintiff did not have a forklift licence. Halloran v Harwood Nominees Pty Ltd and Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300 establishes that a claimant's retraining, subsequent to the time the TPD is said to have arisen, is not relevant to the assessment of his or her TPD.

(r) In light of the evidence before the Trustee and the Insurer, the Court should find that the Plaintiff is totally and permanently disabled within the meaning of the Policy and order the Insurer to pay the benefit to which he is entitled for TPD under the Policy.

(s) In stating, when rejecting the Plaintiff's claim on 13 September 2010 and on 3 February 2011, that the Plaintiff had the "onus of establishing an entitlement" to the TPD benefit, was productive of an error: Vidovic v Email Superannuation Pty Ltd (Supreme Court (NSW), Bryson J, 23 February 1995, unrep), at 13; Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238; (2012) 7 ASTLR 117, at [47] (Nettle JA), with whom Redlich and Davies JJA agreed; Chapman v United Super Pty Ltd, at [70] (Young AJ).

(t) If the Trustee failed to discharge its duties in considering the Plaintiff's claim, the ordinary course would be to refer the matter back to the Trustee. An exception to this approach applied where no reasonable person, applying the correct test to the material before the Trustee, could have reached the conclusion that the Trustee had reached: Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd, at [63] - [65] (McDougall J).

(u) If the Insurer breached its obligation of good faith, the Court itself could determine whether, on the material available to it, the claim fell within the policy: Erzurumlu v Kellogg Superannuation Pty Ltd, at [54].

(v) A consideration of the materials before the Trustee and the Insurer, demonstrated that each of the Trustee and the Insurer had failed to discharge its obligations to the Plaintiff when making the first, second and third decisions. As a consequence, the Court was entitled to, and should, determine, whether the Plaintiff's claim fell within the Policy.

(w) The weight of the evidence supported the conclusion that the Plaintiff was permanently and totally disabled within the meaning of the Policy. He had not been able to work for six consecutive months following sustaining the injury.

(x) In the circumstances, the Court should find that it was unlikely that the Plaintiff will ever to be able to engage in any Regular Remuneration Work for which he was reasonably fitted by education, training or experience. He was, therefore, permanently and totally disabled within the meaning of the Policy.

The Defendants' Submissions

1. The Defendants' submissions may be summarised as follows:

(a) The Plaintiff bears a twofold onus: first, of establishing the matters necessary for the Insurer to form the requisite opinion for the purposes of the TPD definition; and secondly of impugning the Insurer's decision on the ground of breach of its duties.

(b) The obligations on an insurer in considering a TPD claim are:

(i) to act with good faith and to observe fair dealing in its assessment of the claim; and

(ii) in forming its opinion, to act reasonably in considering and determining the matter.

(c) Under the definition, TPD was treated as having occurred on the date on which the six months consecutive inability to work that results in the disablement began. The Plaintiff was injured on 11 April 2008 and did not work in the 6 months after the April 2008, so the Date of Disablement for the purposes of the Policy was 11 April 2008.

(d) What was important is the necessary retrospectivity of the Insurer's enquiry. Material which post-dates 2008 by a significant degree and contends for the Plaintiff's position at a later time could have no bearing on the question of whether the Plaintiff was totally and permanently disabled as at 11 April 2008.

(e) The notion of work within the Plaintiff's education, training or experience was also to be considered by reference to date of the injury.

(f) It was previously the position that work for which the Plaintiff was only qualified after undertaking retraining after the date of the injury was irrelevant to the Insurer's consideration of the effect of the Plaintiff's incapacity. However it is now plain (despite earlier uncertainty) that the need for some retraining in order to qualify the insured person for an occupation would not preclude that occupation being within his education, training or experience: Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57; (2013) 83 NSWLR 246; Chammas v Harwood Nominees Pty Ltd (1993) ANZ Ins Cas 61-175.

(g) The Insurer's submitted that the Plaintiff was unable to discharge the onus in order successfully to impugn any of the three decisions, namely that each was unreasonable on the material then before the Insurer, or vitiated by some lack of fair dealing on the Insurer's part. Even if the Plaintiff were able to do so, the Court, in its own consideration of the issue of the Plaintiff's alleged TPD, would not be satisfied that he met the requirements of the Policy definition.

(h) There was no basis for reading into the TPD definition any qualification based on the distinction between full-time and part-time work.

(i) There are three, or sometimes four, grounds on which a trustee's performance can be successfully challenged:

(i) The discretion was not exercised by the trustee in good faith;

(ii) The discretion was not exercised upon real and genuine consideration (which includes consideration of the wrong question);

(iii) The discretion was not exercised in accordance with the purposes for which it was conferred; and

(iv) Where the trustee had disclosed (otherwise than in the course of the proceedings in which the discretion is challenged) the reasons for the exercise of their discretion, that those reasons are not sound.

(j) There was no basis for any finding that the Trustee breached its duty. Its decision, in each case, followed the decision of the Insurer, but did not merely rubber stamp that decision. It had exercised an independent mind in reaching the conclusion, in each case, that it did.

Relevant Legal Principles

1. There was also no issue between the parties, that the Policy should be given a businesslike interpretation, paying attention to the language used by the parties, the commercial circumstances which the document addressed and the object which it was intended to secure: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579, at [22]; Hannover Life Re of Australasia Ltd v Dargan, at [35].

1. In order to obtain his entitlement, the Plaintiff was required to produce the information and evidence as required by the Trustee in order to satisfy it that the benefit was properly payable to the Plaintiff in accordance with the Deed. In this case, the benefit payable to the Plaintiff was to be funded out of the Policy, and was payable upon him, as a Member of the Fund, suffering TPD. This was determined according to the definition of that term incorporated by reference to the Policy.

1. The Trustee was required to decide whether it was satisfied that the Plaintiff had "ceased to be Gainfully Employed prior to attaining the age of 65 having suffered Total and Permanent Disablement" on the ordinary meaning of those words. It was required to independently consider whether it was so satisfied. It would not discharge its duty if it merely followed, or endorsed, the opinion of the Insurer.

1. The definition of TPD required the Insurer to form an opinion on the question whether the Plaintiff was unlikely to engage in Regular Remuneration Work as defined. The task was to determine, on a balance of probabilities, whether an historical fact, namely the prognostic character of the Plaintiff's condition, at a time earlier than the court's consideration of the issue, had been established. That required the determination of the question whether, as a matter of fact, the Plaintiff was totally and permanently disabled within the meaning of that expression in the Policy.

1. In Erzurumlu v Kellogg Superannuation Pty Ltd, Ball J set out the relevant legal principles, which he described as not being substantially in dispute, as follows (at [52] - [55]):

"The Trustee has a duty to apply the trust assets in accordance with the Trust Deed. In performing that duty, it is required to inform itself properly of the relevant facts: Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 at [30] ff. It is also required to act in good faith, on a real and genuine consideration of the material before it and for sound reasons, although it is not obliged to give reasons for its decision: see Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [32] ff per Santow JA (with whom Spigelman CJ and Tobias JA agreed). If, for any reason, the Trustee has failed to discharge its duties in considering the member's claim, the appropriate order is to refer the matter back to the Trustee. The court generally does not itself seek to execute the trust: Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [33].

Although a member is not a party to the contract with the insurer who provides insurance cover to the trustee of a superannuation fund, the member has standing to enforce the contract as a beneficiary of the trust which holds the insurance policy as one of its assets. The member does not have a personal claim but is entitled to seek an order that the insurer pay to the trustee the amount due to the trustee under the contract: Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 at [78] ff. An insurer, when considering a claim, must comply with its obligation of utmost good faith. That obligation requires the Insurer to act reasonably in considering the claim. The obligation to act reasonably includes an obligation to consider and to determine the correct question. It also includes an obligation to give the member an opportunity to answer any material on which the insurer intends to rely: Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [35] ff. Although the obligations of the trustee and the insurer are expressed in different terms, from a practical point of view, the grounds on which the decision of each may be challenged are similar: Sayseng (2003) at [77]. The duty of the court is to determine whether the insurer breached its duty of utmost good faith. It is not to substitute its own view for that of the insurer. However, if an insurer refuses a claim in breach of its obligation of good faith, the court itself can determine whether, on the material available to it, the claim fell within the policy: Sayseng (2005) at [36].

Although it is an issue that is ultimately to be determined by the terms of the trust deed and policy, generally the question whether a member suffers from total and permanent disablement is to be determined at the time and by reference to the facts that exist at the time the member first suffers from total and permanent disablement in accordance with the policy. It is at that time, and by reference to those facts, that the trustee and insurer are required to consider the question whether the member suffers from total and permanent disablement. There is a question whether that is when the member ceased work or when the qualifying period before any benefit is payable expires: compare Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 at [33] per Brereton J (who preferred the latter approach) and Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 where Nicholas J appears to have preferred the former approach. The parties accept that nothing turns on which approach is adopted in this case. However, in my opinion, the preferable approach is the one adopted by Brereton J. On the wording of the Policy, Mr Erzurumlu could not have suffered from total and permanent disablement until the expiration of the six month period. It seems logical to assess whether Mr Erzurumlu could ever engage in work at that time."

1. In relation to the Trustee, in Finch v Telstra Super Pty Ltd, the High Court held that:

"... There is no doubt that under Karger v Paul principles, particularly as they have been applied to superannuation funds, the decision of a trustee may be reviewable for want of "properly informed consideration". If the consideration is not properly informed, it is not genuine. The duty of trustees properly to inform themselves is more intense in superannuation trusts in the form of the Deed than in trusts of the Karger v Paul type. It is extremely important to the beneficiaries of superannuation trusts that where they are entitled to benefits, those benefits be paid. Here, for example, the applicant was claiming a Total and Permanent Invalidity benefit to support himself for the rest of his life. His claim depended on the formation of an opinion by the Trustee about the likelihood that he would ever engage in "gainful Work": that was not a mere discretionary decision. In the Deed there was a power to take into account "information, evidence and advice the Trustee may consider relevant" and that power was coupled with a duty to do so. It would be bizarre if knowingly to exclude relevant information from consideration were not a breach of duty. And failure to seek relevant information in order to resolve conflicting bodies of material, as here, is also a breach of duty. The Scheme is a strict trust. A beneficiary is entitled as of right to a benefit provided the beneficiary satisfies any necessary condition of the benefit. Whether or not it will be decided hereafter that, consistently with s 14 of the Complaints Act, the duty of a trustee in forming an opinion of the present type is a duty to form a fair and reasonable opinion, or even a duty to form a correct opinion, there is because of the importance of the opinion and its place in the Scheme a high duty on the Trustee to make inquiries for "information, evidence and advice" which the Trustee may consider relevant. ..."

1. Bryson J explained, in Vidovic v Email Superannuation Pty Ltd, at 13:

"The formation by the trustee of an opinion is not analogous to judicial or arbitral decision of a disputed question ... There is no onus of proof on any person; there are no adversaries."

1. In relation to the Insurer, the following principles, which have been taken from the authorities, particularly, Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113, at 77,536-7, and Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945, may be stated:

(a) The insurer must consider, and determine, the correct question or questions. This essentially requires the correct interpretation of the policy of insurance.

(b) If the insurer seeks an opinion from an expert, it must provide the expert with all of the information that is relevant to the expert's opinion.

(c) Where an expert opinion is sought, the expert must also be asked the right questions.

(d) Asking the right questions of the expert, however, does not require the insurer to ask the expert to address specific provisions in the policy. The insurer is itself making the ultimate decision, and not delegating the decision making to the expert. The critical enquiry for the court is whether the insurer, ultimately, has addressed the correct questions either directly, or indirectly with the aid of the expert's opinion, and has taken account of the relevant information either directly, or indirectly, in respect of relevant information assessed by the expert.

(e) The insurer is under a duty to act in good faith and to observe fair dealing in respect of both the trustee and the insured.

(f) As part of this duty, the insurer must have due regard for the interests of the insured. However, this duty is contractual, not fiduciary. This duty is analogous to the duty of a mortgagee exercising a power of sale of mortgage property.

(g) Where a state of affairs governing entitlement of the insured to a benefit is to be determined after a consideration by the insurer, the insurer must act reasonably in considering the matter and in coming to its conclusion.

(h) If the view taken by the insurer can be shown to have been unreasonable on the material before it, the insurer's decision can be successfully attacked.

(i) If the insurer's decision is successfully attacked, the matter upon which its opinion was required becomes one for determination by the court.

1. Unless the view taken by the Insurer could be shown to have been unreasonable on the material then before it, the decision of the Insurer could not be successfully attacked on this ground. The question whether there was a reasonable basis for the decision turns on the evidence, taken as a whole, conveyed to the insurer at the time.

1. A person is engaged in regular remunerative work under the Policy if he, or she, is able to undertake work occurring at fixed times or uniform intervals, including part-time work, but excluding casual work, or other work of an intermittent nature. In Hannover Life Re of Australasia Ltd v Dargan, the Court observed, at [46] - [47]:

"The question of whether Mr Dargan suffered Total and Permanent Disablement, notwithstanding his ability to undertake part-time work as a taxi driver at the relevant date, depends on whether such part-time work was Regular Remuneration Work as that term is defined in the policy. The definition provides that a person is engaged in regular remunerative work if they are doing work in any employment, business or occupation. There is no limitation on the work being full-time or part-time. The limitations are that the work must be remunerative, that is done for reward or hope of reward and must be regular. The word regular means something occurring at fixed times or uniform intervals (see the definitions in the Shorter Oxford English Dictionary and the Macquarie Dictionary). Thus, it would not in the present context include casual work or other work of an intermittent nature. However, the word regular would not on a literal construction exclude part-time work. In the present case Mr Dargan was able to work regularly, albeit on a part-time basis as a taxi driver, at least from June 2008. Subject to passing the course, there was nothing to suggest he would not have been capable of doing this at the time of assessment and as I indicated the contrary was not put. It follows, in my opinion, that Mr Dargan was capable of doing Regular Remuneration Work.

The construction, in my opinion, is consistent with the purpose of the policy. It is to provide benefits for Total and Permanent Disablement, not partial disablement."

1. In Halloran v Harwood Nominees Pty Ltd, the Court considered the entitlement of a worker to benefits asserted to arise under a superannuation scheme as a result of a disability. The worker was required to prove to the satisfaction of the trustee that "the member has become incapacitated to such an extent as to render the member unlikely ever to engage in work for reward in any occupation or work for which he or she is reasonably qualified by education, training or experience ...". At [76], Brereton J analysed the relevant clause as follows:

"That phrase can be distilled into the following components.

(1) Unlikely (meaning a probability of less than 50%) [White v The Board of Trustees [1997] 2 Qd R 659, 673]

(2) Ever to engage (meaning on a full-time regular basis) [Riley v National Mutual Life Association [1986] 4 ANZ Ins Cas 60-684, 74063; Chammas; Nile v Club Plus Superannuation Pty Limited [2005] NSWSC 55, cf Wyllie v National Mutual Life Association of Australasia [1997] 217 ALR 324; Sayseng v Kellogg Superannuation]

(3) In any occupation or work (meaning a recognised occupation, not a special light duties job for injured workers) [Cavill Power v Royale; Dolton v State Authority Superannuation Board [1995] NSWIRC at 159 [11.1]] and being work which he is likely to be able to obtain [Chammas, Nile v Club Superannuation, [64]];

(4) For which he is reasonably qualified by education, training or experience (as at the date of assessment) [Giles, Fernance)."

1. In Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55, the relevant total and permanent disability clause provided:

"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."

1. Brownie AJ wrote, at [64] - [65]:

"As Hodgson J pointed out in Chammas ... 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."

1. In Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325, at 351, Commissioner Roberts-Smith QC, sitting as the District Court of Western Australia, wrote:

"I should also say in passing that the word "unlikely" in the definition is of some significance. It clearly sets a much lower test than would be posed if an insured had to establish that he was incapable of following his usual or any other occupation. Thus, even if the evidence were to leave open a possibility that in the future an insured might be able to do so, if it nonetheless established that he or she was unlikely to be so able, that would be sufficient to make out the claim."

1. The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the Plaintiff would actually obtain paid employment for which he was qualified, by education, training or experience, and whether his condition disabled him from doing what he was qualified, by education, training or experience, to do. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory: Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583, at [64]. Similarly, the concept must include that which is reasonably available and in an area in which it could be expected the insured, in the position of the Plaintiff, could reasonably apply.

1. In Baker v Local Government Superannuation Scheme Pty Ltd, McDougall J expressed a similar view, concluding, at [58], the "Court is required to take a realistic and common-sense approach. There must be a real prospect, and not merely some theoretical possibility, that the work will be available. It should not be work in some special light duties job created for the injured worker."

1. In Cigna Life Insurance New Zealand Ltd v Rowles (High Court (New Zealand), Ellis J, 2 May 1997, unrep), the insurance policy included the phrase "reasonably qualified by education, training or experience". North J held:

"The word "qualified" in the clause can be said to limit the clause to situations where the claimant has some formal qualification, but I consider its proper construction is in the more general sense of "fit for". That meaning is a usual one as will be seen from the Concise Oxford Dictionary. To be "qualified" is to be "made fit for". In terms of the clause in the policy that fitness must be acquired by education training or experience. [The insured's] fitness for any occupation is to be judged at the time she makes the claim. The use of the word "reasonably" to qualify "qualified" (to use the word in another sense) can only import a lack of strict or rigorous approach to the claimant's fitness for other work or occupation. The extent of the retraining therefore is a factor."

1. In Sayseng v Kellogg Superannuation Pty Ltd, Bryson J, wrote, at [64] and [73]:

"The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the insured would actually obtain work for reward (i.e. paid employment) for which he is qualified by education, training or experience, and whether his condition has disabled him from doing what he is qualified to do. 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.

...

The part-time work which the insurer submitted the plaintiff was capable of doing was never adumbrated, apart from reference to the duties and limitations specified in the rehabilitation programmes. I find it significant that there was no evidence which identified any form of work which the plaintiff would be capable of performing free of pain, and without the need to take frequent breaks for relief of pain and changes in posture. According to the evidence, the plaintiff's condition is, and has been continuously since 11 December 1997 [the hearing being in 2006/07], such that he is possibly able to perform light tasks which allow him to relieve pain by lying down, sitting, standing, moving about, and changing posture regularly during a shift, and does not involve bending, lifting or twisting. As a matter of reality and common sense, it is difficult to envisage the probability of the existence of paid employment for work of that kind. On any view, such work would not be of the kind that the plaintiff is reasonably capable of performing by reason of education, training or experience."

1. In Halloran v Harwood Nominees Pty Ltd, Brereton J, also considered the relevance of further training. His Honour wrote, at [34] - [36]:

"In Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300 (a decision which was reversed by the Full Court of the Industrial Court on appeal, on different grounds which do not affect its authority on this point) Hungerford J said (at 329):

Inherent in those findings of unfairness is my conclusion that the definition of 'totally and permanently disabled', which refers to 'any occupation or work for which he is reasonably qualified by education, training or experience', makes the assessment of the relevant incapacity as at the time of the assessment and not after retraining. In other words, whether a member is unlikely ever to engage in work is to be determined according to his qualification, after the period of six consecutive months absence, at that time and not at some future time as a result of the retraining; that must be so, it seems to me, because the definition refers to any occupation or work 'for which he is reasonably qualified'. The definition does not admit, in my view of it, qualifications by education, training or experience which the member may or may not be able to obtain in the future.

In Fernance, the Court was considering a definition of total and permanent disablement in an insurance policy issued by National Mutual in terms relevantly identical to that in the present case. In my view, it is clear that Hungerford J, when speaking of "the future", was speaking of the future after expiry of the period of six consecutive months absence, not the future after the date of hearing. Read as a whole, I think it is clear that when his Honour referred to the "time of assessment", his Honour was referring to the expiry of the six month period - that is, the date as at which the assessment of total and permanent disability was to be made - and not the date on which the assessment was in fact made in the sense of the date of the decision of the trustee or the hearing before any court.

Mr Cavanagh submitted that subsequent events, including actual employment for which the employee became suited only by retraining after the relevant date, were relevant and could be taken into account. In many cases, as was indicated in Pigeon J's judgment in Giles, evidence of subsequent events may be relevant. In the present case, if Mr Halloran had returned to work as a greaser or had returned to heavy labour that would prove that he could not have been permanently disabled for work for which he was suited as at the relevant date for assessment. He was, undoubtedly, suited by education, training and experience for work as a greaser or a labourer and had he subsequently returned to such work it could not have been argued that he was shown to be permanently disabled from it after an absence of six months from CSR. But the definition in the policy is concerned with employment for which the employee was suited at the expiry of the six month period. As Fernance makes clear, employment for which an employee becomes suited only subsequently by reason of retraining is not the type of employment which is contemplated by that definition, because it is not employment for which the employee was at the relevant date of assessment suited by his or her then education, training and experience. In my view, to take into account work for which the employee became suited only by subsequent retraining would be contrary to the authority of Hungerford J's decision in Fernance, and would also be contrary to the definition. If an employee is not disabled as defined at the relevant date, a subsequent deterioration in his or her condition does not qualify him for a disablement benefit. Conversely, if he or she is disabled as defined at the relevant date, a subsequent improvement in his or her condition does not retrospectively disqualify the employee from the benefit. To adopt the construction for which the defendant contends would make the time at which the application for a benefit is made and the time at which it was considered by the trustee decisive rather than the time objectively fixed by the trust deed as at which that decision should be made. It might well result in different decisions properly being made by a trustee on an initial application and on an application for reconsideration, and then a different decision again by a Superannuation Complaints Tribunal conducting a review as at the date that the matter came before it. That result seems to me an undesirable one."

1. The words "education, training or experience" are used both disjunctively and conjunctively. A person can be reasonably fitted for Regular Remuneration Work by reason of education or training or experience or a combination of each. The words describe a capacity to undertake a new job based on education, training or experience. They constitute a link between the job and previous education, training or experience: Dargan v United Super Pty Ltd [2011] NSWSC 1316, at [44] (Gzell J).

1. In Chapman v United Super Pty Ltd, Young AJ, at [32] - [34], put the principle this way:

"Putting aside situations of de minimus training one does not require a plaintiff to undergo a course of retraining in order to make him or her employable. Even if an injured ballet dancer has the intellectual capacity to go to university, get a law degree and become a barrister, that would not disqualify him or her from being totally and permanently disabled (assuming that they were not able to take any part-time job that was reasonably fitted to his or her then current education, training or experience). This construction was reached by Hungerford J in Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300 at 329 and affirmed by Brereton J in Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 at [36].

Dargan makes it clear at [37] that it is no bar to the finding that work is within the plaintiff's education, training or experience that a short qualifying course of training or retraining may be required."

1. I have earlier referred to the Plaintiff's submission regarding what the Insurer, in relation to its first and second decisions, referred to as the "onus" upon the Plaintiff. I should add the statement of Young AJ, in Chapman v United Super Pty Ltd, at [70], to the effect that "the better view would seem to me that no question of onus is relevant when considering the Trustee's decision", which echoes what Nettle JA said in Alcoa of Australia Retirement Plan Pty Ltd v Frost, at [47] and [54].

Determination

1. As stated, there was no dispute that the Plaintiff was gainfully employed within the six months prior to the Date of Disablement and that he was unable to follow his usual occupation, being that of a scaffolder, by reason of the disablement that he suffered on 11 April 2008 for six consecutive months thereafter.

1. There was also no dispute that his injury prevented the Plaintiff resuming his previous occupation, being that of a scaffolder, at any time into the future.

1. Nor was there any dispute that the Plaintiff was an "Insured Person".

1. Furthermore, the Defendants, whilst commenting that notice of the claim was not given until June 2009, did not take any point about the lateness (if it be late) of that notice.

1. I have earlier referred to the two definitions critical to the outcome of the proceedings, namely, the definition of TPD in Clause 1.3 of the Policy and that of "Regular Remuneration Work" in the glossary to the Policy. The parties were content to proceed on the basis that the question to be answered was whether, as a matter of fact, the Plaintiff was totally and permanently disabled within the meaning of that expression in the Policy, which in turn required the Insurer to be satisfied that he was unlikely to be able to ever engage in regular remunerative work in any employment, business or occupation for reward, or the hope of reward, of any type. However, that work was of the type for which he was reasonably fitted by education, training or experience.

1. Although there may be a question of whether the date of disablement is the date on which the Plaintiff's injury was sustained, or six months thereafter, on the facts of this case, nothing turns on the determination of that question. In either case, the Plaintiff's medical condition was not substantially different, although as time progressed, the medical evidence became more detailed.

1. It is noteworthy that, in none of the medical reports referred to, is there any suggestion that the Plaintiff's symptoms, complaints, or restrictions upon activities, were not genuine.

1. As stated above, the Plaintiff's broad contention was to the effect that no reasonable trustee could have come to each of the first, second or third decisions to which the Trustee came. Of course, that contention was peppered with concepts such as the trustee's discretion was not exercised in good faith, or upon real and genuine consideration of the material before it, or in accordance with the purposes for which the discretion was conferred. However, the central plank of the Plaintiff's case was to the effect that no reasonable trustee could have arrived at each of the decisions at which the Trustee arrived. A component is the consideration, or the lack of correct consideration and interpretation, given by the Trustee to the material, and particularly to some aspects of it.

1. (This was not a case in which it was submitted that either the Trustee or the Insurer did not draw to the Plaintiff's attention, the material upon which each intended to rely in reaching any of its decisions. In each case, it did so, leaving it to the Plaintiff, or his legal representative to determine whether any further material was required to be placed before the Trustee and the Insurer.)

1. I have reached the conclusion that no trustee acting reasonably could have decided, at the relevant time, that the Plaintiff was not totally and permanently disabled within the meaning of the definition of TPD. I am satisfied that, at the time of each decision, the medical evidence, overall, was to the effect that the Plaintiff was unable to engage in any regular remunerative work for which he was reasonably fitted by education, training or experience and that it was unlikely that he ever would so engage.

1. The liability of the Insurer under the Policy depended upon the formation by it of an opinion as a condition of its liability. In those circumstances, the Insurer was bound by a duty of good faith and fair dealing to act reasonably and fairly in considering and determining the matter and, in particular, the Insurer was duty bound to have due regard to the interests of the Plaintiff in forming, or declining to form, the opinion upon which its liability was dependent: Edwards v Hunter Valley Co-op Dairy Co Ltd, at 77,536. For the same reasons, I have also concluded that each decision by the Insurer was unreasonable, and accordingly, invalid.

1. As is clear from a reading of the correspondence outlined above, the primary basis for the making of each decision was that the Plaintiff was able to work as a forklift driver because of his "experience". (There was no suggestion of education or training that would enable him to do so and counsel for the Defendants accepted that that part of the definition was not relied upon (T101 and T103).)

1. (At the commencement of the hearing, during the Defendant's opening, there was a reference to the Plaintiff working as a process worker or crane or hoist operator. However, this seemed not to be pressed as final submissions proceeded. In any event, the medical limitations, particularly those relating to the duration of the period the Plaintiff was able to stand (no more than 60 minutes at one time) would be relevant. Also, there is no evidence that he could do such work by reference to education, training or experience.)

1. The primary facts known at the time of each decision made by the Trustee and by the Insurer were that the Plaintiff was an unskilled manual labourer, originally from Bosnia, with extremely limited qualifications. English was his second language and he was not well versed in it. The definition required an opinion to be formed by reference to his existing education, training and experience. At the time of the injury being sustained, he was never qualified to drive a forklift.

1. In my view, driving a forklift, whilst unlicensed, for a period of time (whether 6 months or less), about 20 times, many years before the injury, did not provide the required existing "experience". Nor did his driving a tractor in another country. (Nor was the Plaintiff asked any questions about the similarities, if any, between driving a tractor and a forklift. It was not suggested that his prior experience in driving a tractor provided him with the experience to be able to drive a forklift.)

1. (I note that the Employer's "Statement", which had been completed by the Liquidator of the Employer, and which document formed part of the material upon which each of the Trustee and the Insurer relied, made no mention of the Plaintiff having experience as a forklift driver. The Plaintiff's occupation was disclosed as "Scaffolding fitter".)

1. Counsel for the Defendants submitted that I should not rely upon the "Statement", as there was no evidence as to the source of the Liquidator's knowledge. I infer that the information came from the books and records of the Employer that were available to the Liquidator. In any event, it accords with the facts.

1. The Plaintiff was not asked by Dr Home, or during the giving of his oral evidence, any questions regarding the training, if any, that had been given to him when he had driven the forklift. It is unlikely, bearing in mind the passage of evidence on this topic quoted above, that he had been given any, or at least any substantial, training.

1. In addition, it was clear to Dr Home, that the Plaintiff had no forklift licence when he had been first employed or at any time subsequently. Nor had the Plaintiff ever driven a forklift otherwise during the subsequent period of his employment. In Australia, the Plaintiff had only worked as a scaffolder.

1. The Policy definition relied upon referred to "Regular Remuneration Work for which the Insured Person is reasonably fitted by education, training or experience." That verb should be given its ordinary meaning and its use to denote the present tense. The Policy did not refer to Regular Remuneration Work that the Insured Person, after appropriate training, might be able to perform. Accordingly, it does not seem that a requirement to obtain a licence, even assuming he had the capacity to successfully undertake one, or other, of the courses available, is relevant.

1. I note, also, that the letter dated 8 October 2010, from the Trustee to the Plaintiff referred to "the scope of your previous education, training or experience". The use of this word is supportive of the conclusion expressed in the previous paragraph.

1. In my view, the Plaintiff, at the time of sustaining the injury, was not reasonably fitted for driving a forklift. He did not have the necessary education, training or experience to do so. He did not have the capacity to undertake that work, amongst other reasons, because he did not have the necessary licence.

1. There was some evidence about the availability of subsequent training and the courses available that might enable the Plaintiff to obtain a forklift licence. In view of the terms of the Policy, I am of the view that what the Plaintiff, with subsequent training, in the future, might be able to do, was not a relevant consideration. At the date of each decision, he was unable to drive a forklift because he did not have the relevant licence. Thus, he had no training or education in relation to that work. As I have earlier found, the previous occasions when he drove a forklift, did not constitute relevant "experience".

1. Dr Home accepted that the Plaintiff would not be able to drive a forklift over rough terrain. He also accepted that there would be other restrictions in the Plaintiff being able to do so. Additionally, he accepted that some vocational rehabilitation was necessary.

1. As was said in Alcoa of Australia Retirement Plan Pty Ltd v Frost, at [68], "to put it at the lowest, it is difficult to conceive of too many forklift driving positions ..., which do not involve ... driving machinery over rough terrain".

1. According to the evidence, the Plaintiff's condition was such that he would have to stop reasonably regularly and that he could do nothing which involved bending, lifting or twisting. As a matter of reality and common sense, the difficulty of envisaging the probability of the existence of paid employment as a forklift driver, bearing in mind the medical restrictions that the Plaintiff has, was clear. Certainly, there was no evidence of such a job being available as at the date that each decision was made.

1. I have earlier referred to the passages in Baker v Local Government Superannuation Scheme Pty Limited and the view expressed by McDougall J relating to the approach to be taken in assessing the availability of alternative work. The court is required to take a realistic and common-sense approach. There must be a real prospect, and not merely some theoretical possibility, that the work will be available. It should not be work in some special "light duties" job created specifically for the injured worker.

1. In my opinion, the conclusion that the Plaintiff may be able to return to Regular Remuneration Work driving a forklift was without evidentiary support. His previous education, training or experience, did not reasonably permit such a decision to be reached at the time each decision by the Trustee was made. The reasoning of each decision of the Trustee and of the Insurer, evident from the extracts in letters quoted above, proceeded upon the basis that the Plaintiff would be able to do so because of that previous education, training or experience.

1. Even if the conclusion that future education and training is not relevant is wrong, the need for the Plaintiff to attend Dr Home with an interpreter would have been relevant to the question of whether he had the capacity to enable him to complete a course to enable him to obtain a forklift licence of the type the subject of the Defendants' evidence. (There was no evidence that the course was available to be conducted other than in the English language.)

1. In all the circumstances, I am satisfied that it was unreasonable to consider that the Plaintiff had the capacity to successfully complete such a course.

1. The same may be said about lighter forms of employment. Again, in each case, "further rehabilitation" was required.

1. In my view, the evidence in the present case on which reliance was placed by each of the Trustee and the Insurer falls far short of establishing the availability of such work. Counsel for the Defendants accepted (T88) that there was no evidence of any enquiry made by either the Trustee, or the Insurer, as to the availability of work for a worker with the symptoms, complaints, or restrictions upon activities that this Plaintiff had. There was no evidence of any actual labour and market analysis, or the need to obtain such, with real employer contacts, to assess the likelihood of the Plaintiff obtaining any such employment.

1. As in Baker, each of the Insurer and the Trustee appears to have grasped at the possibility, or theory, of the availability of some work, and refrained from turning its mind to the question whether, in the real world, the Plaintiff was ever likely to obtain such work.

1. Similarly, performing alternative part-time employment, bearing in mind the restrictions that the Plaintiff had, and his previous education, training and experience, is also difficult to conceive. He had no experience, in Australia, other than as a scaffolder. He had no experience as a crane operator or as a process worker. Furthermore, as was said by Brereton J, at [62], in Halloran v Harwood Nominees Pty Limited, "[a] man is not to be taken to have the capacity to continue in employment if it is at the expense of his health or aggravates pain".

1. It is not simply that the material permitted an alternative view, of which the view taken by each of the Trustee and the Insurer was the least likely. In my view, each decision taken was contrary to the preponderance of evidence so as to be unreasonable in the relevant sense. In my opinion, had a reasonable and realistic assessment been made of the whole of the evidence, each of the Trustee, and the Insurer, would have concluded, at each time a decision was made, that the Plaintiff was totally and permanently disabled within the meaning of the Trust Deed and of the Policy.

1. In particular, in relation to its third decision, neither the Trustee nor the Insurer seems to have weighed the significance of what the Plaintiff said regarding his inability to drive a forklift, and considered whether that material undermined, or affected, in a significant way, what Dr Home had written. Despite referring to the subsequent medical report relied upon by the Plaintiff, each did not, it appears, give any real consideration to that part of the report.

1. I remember that the question of whether there is a reasonable basis for the opinion that the insured is within the definition of TPD turns on what the evidence, taken as a whole, conveys to the decision-maker at the time the decision is made. The Trustee, and the Insurer, each acting reasonably at the time of each decision, should have reached the conclusion that the Plaintiff had a level of disablement that met the definition. It should then have found that he was unlikely to ever be able to engage in any regular remunerative work for which he was reasonably fitted by education, training or experience. When all of the material before the Trustee, particularly at the time of the third decision, is considered and weighed, the conclusion must, or should, have been that each ingredient, including that of the unlikelihood of the Plaintiff ever being able to engage in any regular remunerative work as defined, was satisfied.

1. Also, by the date of the third decision, the Plaintiff had been out of work for almost three years. In Finch v Telstra Super Pty Limited, at [18], a "key guide" to whether the member had, in fact, suffered a "disablement" was the fact of his continuous absence from work for 6 months. Whilst each of the Trustee and the Insurer had to come to an opinion well before that date, there is no evidence that each took into account the fact that the Plaintiff had continued to be unable to find any alternative employment since April 2008.

1. (Although there was a criticism made of the Trustee simply accepting what the Insurer had written, I consider that the Trustee does appear, by the assessor, to have considered the material that had been provided to it. However, I am satisfied that the decision of the Trustee, in each case, was one at which no reasonable person or trustee could have arrived.)

1. In that case, what should be now done? In this regard, it is relevant to take into account the fact that the Plaintiff has been unable to obtain employment for nearly 6 years. That may be looked at in retrospect.

1. Given the nature of the findings that I have made, namely that no reasonable trustee or insurer, applying the correct test to the available material, could have reached each conclusion that it did, I am of the view that reconsideration by the Trustee would be futile. It has had a number of opportunities to reconsider its decision, after additional material has been supplied, but its decision has not altered. Rather, it has maintained its position, as it was first expressed. Accordingly, this matter should not be remitted to the Trustee for further consideration. This is a case in which the court should exercise the discretion that would normally be exercised by the Trustee.

1. In relation to the Insurer, I am satisfied that each decision is invalid and that the court should proceed to determine the issue. I do so in favour of the Plaintiff. I determine that he has satisfied the definition of TPD within the meaning of the Trust Deed and that he is entitled to be paid the relevant amount. This is $100,000. The quantum of this amount has not been disputed. There should also be an order that the sum, together with interest thereon, should be paid to the Trustee, and a further order that the Trustee should pay the sum, together with interest thereon, to the Plaintiff.

1. In case I am wrong, I also refer to the Insurer's reference to onus of proof. I have referred to what was said by Bryson J in Vidovic v Email Superannuation Pty Ltd to the effect that the Plaintiff does not bear any onus of proof and that it was productive of error that the Insurer proceeded upon the basis that he did bear such an onus.

1. I have considered whether the passage in the two letters referred to relating to onus of proof, related to what might be described as an evidentiary onus - the onus of providing information which was to be relied upon. However, I do not think that I should read the passage in the letters in that way since there was no complaint that the information that had been supplied was less than was required to be supplied.

1. In those circumstances, the same conclusion can be reached by reference to what Brereton J said, in Halloran v Harwood Nominees Pty Ltd, regarding an "irrelevant consideration" being sufficient to invalidate the entire decision.

1. I appreciate that the parties wish to argue the question of the date from which interest should be calculated. However, I shall allow them an opportunity to try to resolve this issue between themselves.

1. I direct the parties to prepare, within 10 days, short minutes of order to reflect, and give effect to, these reasons, and to deliver the original thereof, in hard and soft copy, to my Associate. If there is no dispute, I shall deal with the matter in Chambers so as to avoid further costs being incurred. Failing agreement on any aspect thereof (for example, as to interest and costs), I shall hear further argument at a convenient time to be arranged with my Associate.

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Decision last updated: 20 February 2014