Murphy, McCarthy & Associates Pty Limited t/as MMA Civil Contractors (Subject to Deed of Company Arrangement) v Zurich Australia Limited

Case •

[2025] NSWCA 131

•

16 June 2025

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Murphy, McCarthy & Associates Pty Limited t/as MMA Civil Contractors (Subject to Deed of Company Arrangement) v Zurich Australia Limited [2025] NSWCA 131
Hearing dates: 29 May 2025
Date of orders: 16 June 2025
Decision date: 16 June 2025
Before: Ward P at [1];
Mitchelmore JA at [2];
Ball JA at [3]
Decision:

The appeal be dismissed with costs.

Catchwords:

INSURANCE – policy for life and total and permanent disability (TPD) cover – where life insured provided services to appellant as a construction manager and project supervisor – where life insured undertook hip replacement – where appellant made claim for TPD under policy – meaning of “Own Occupation” under policy – whether primary judge erred in construing “Own Occupation” – no error

EVIDENCE – whether primary judge erred in finding the life insured exaggerated his evidence – whether primary judge failed to give adequate weight to expert and documentary evidence – no error

Legislation Cited:

Migration (1993) Regulations 1992 (Cth), reg 2.4(4)

Cases Cited:

Browne v Dunn (1893) 6 R 67 (HL)

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7

Minister for Immigration & Multicultural Affairs v Hu (1997) 79 FCR 309

MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329

Thomasv Van Den Yssel (1976) 14 SASR 205

Category:Principal judgment
Parties: Murphy, McCarthy & Associates Pty Limited t/as MMA Civil Contractors (Subject to Deed of Company Arrangement) (Appellant)
Zurich Australia Limited (Respondent)
Representation:

Counsel:
BW Rayment KC with M Gollan (Appellant)
D Lloyd SC with A Avery-Williams (Respondent)

Solicitors:
Firths the Superannuation Lawyers (Appellant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 2024/389350
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of NSW
Jurisdiction:
Equity
Citation:

[2024] NSWSC 1203

Date of Decision:
25 September 2024
Before:
Kunc J
File Number(s):
2022/313588

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 16 July 2013, OnePath Life Ltd issued an insurance policy to Murphy, McCarthy & Associates Pty Ltd t/as MMA Civil Contractors (Subject to Deed of Company Arrangement) (MMA), which MMA renewed annually. Among other things, the policy provided life and total and permanent disability (TPD) cover. The life insured under the policy was Mr Francis Heron, who through a company he incorporated provided his services to MMA as a construction manager and project supervisor on an exclusive basis from about 2002 to November 2021. On 1 August 2022, the policy was novated to the respondent, Zurich Australia Limited, following its acquisition of the insurance business carried on by OnePath.

In mid-2021, Mr Heron, who was then aged 64, was diagnosed with arthritic change affecting the left hip. Mr Herron underwent a complete hip replacement on 19 November 2021. The primary judge (Kunc J) found that the surgery was very successful, and that Mr Heron made an excellent recovery. Mr Heron subsequently returned to work, but not for MMA.

On 26 May 2022, MMA’s solicitors lodged on behalf of MMA an Initial Claim Form for a TPD claim in respect of Mr Heron together with supporting documents, including a “position description” which purported to set out Mr Heron’s principal activities while working for MMA.

Under the policy, if the life insured suffered TPD while the policy was in force, and satisfied the conditions of the TPD definition, the insurer was to pay the full TPD Cover amount. At the time MMA made its claim, the “TPD Cover amount” was $2,954,908.

The TPD definition was “Own Occupation”. The Own Occupation TPD definition provided that “Own Occupation” related to the most recent occupation in which the life insured was engaged prior to the date of disability, and that as a result of illness or injury the life insured has been unable to engage in their “Own Occupation” for three consecutive months and would be unlikely ever again to be able to engage in their “Own Occupation”. “Occupation” was not defined in the policy.

MMA commenced proceedings in October 2022.

The critical question before the primary judge was whether Mr Heron was, as a consequence of his hip replacement, unlikely ever again to be able to engage in the occupation in which he was engaged immediately before his operation. His Honour concluded that Mr Heron’s own occupation was “Construction Manager/Project Supervisor” and that he was not disabled to such an extent that he was unlikely ever again to be able to engage in the activities performed as part of that occupation.

On appeal, MMA contended that the primary judge erred in the following respects:

  1. by taking the wrong approach to the definition of the word “occupation” as used in the policy and in doing so placing too much emphasis on Mr Heron’s resume and inadequate weight on evidence of what Mr Heron did for MMA;

  2. by giving inadequate weight to the “position description” document and to the description of Mr Heron’s duties contained in the application form for the insurance;

  3. by wrongly concluding that Mr Heron’s evidence of the nature and extent of the physical work he did for MMA was exaggerated; and

  4. by giving inadequate weight to the evidence from the medical experts.

The Court held (Ball JA, Ward P and Mitchelmore JA agreeing) dismissing the appeal:

As to issue (i)

  1. The word “occupation” as used in the definition of “own occupation” should be interpreted consistently with the purpose of providing protection to MMA if Mr Heron’s services were, because of an injury, no longer available to it. In that context, the word “occupation” requires consideration of the actual activities carried out by the life insured in his or her most recent job, not whether he or she could carry out the same occupation according to some abstract taxonomy for the classification of different types of occupation: [29]-[30].

  2. Although the primary judge adopted a taxonomic approach to the identification of Mr Heron’s occupation by drawing a distinction between his “own occupation” and “job”, it is apparent that when addressing the critical question whether Mr Heron was unlikely ever again to be able to engage in his own occupation, his Honour did focus on the activities Mr Heron could do following his hip replacement and compared that to what Mr Heron did when he worked for MMA. Consequently, although the approach taken by the primary judge to the definition of “own occupation” may have been erroneous, his Honour made no error in applying the definition to the facts of this case: [32]-[38].

Minister for Immigration & Multicultural Affairs v Hu (1997) 79 FCR 309, distinguished.

As to issue (ii)

  1. The primary judge was correct to point out that the position description was not Mr Heron’s document, that Mr Heron appeared to have no idea about the document when he was cross‑examined about it, that it was obviously incomplete and that it was difficult to reconcile with other evidence concerning Mr Heron’s role at MMA, which was primarily a supervisory one. His Honour was entitled in those circumstances to conclude that little weight could be given to the document in determining what Mr Heron’s role at MMA was: [41].

  2. The primary judge considered the application form and correctly thought that the evidence supported the conclusion that Mr Heron’s responsibilities while working for MMA involved a minimal amount of manual labour: [44].

As to issue (iii)

  1. The primary judge had the advantage of seeing Mr Heron in the witness box and considering all the material. It was on that basis that he formed the opinion he did concerning Mr Heron’s credibility. There was ample evidence to justify that finding. The primary judge was entitled to find that Mr Heron’s evidence on the degree to which he engaged in physical activities while working for MMA was “exaggerated” even though that suggestion was not put directly to Mr Heron in cross-examination: [55], [57]-[61].

Browne v Dunn (1893) 6 R 67 (HL); MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329; Thomasv Van Den Yssel (1976) 14 SASR 205, referred to.

As to issue (iv)

  1. The primary judge was conscious of the medical evidence and accepted it when he described the things that Mr Heron could not do. However, on the findings of the primary judge those activities were not an essential part of the work Mr Heron did for MMA. Accordingly, no error has been made out: [64].

JUDGMENT

  1. WARD P: I agree with Ball JA.

  2. MITCHELMORE JA: I agree with Ball JA.

  3. BALL JA: This is an appeal against orders made by the primary judge, Kunc J, on 25 September 2024 dismissing a claim by the appellant, Murphy, McCarthy & Associates Pty Ltd t/as MMA Civil Contractors (Subject to Deed of Company Arrangement) (MMA), under an insurance policy issued to MMA by OnePath Life Ltd on 16 July 2013 and renewed annually by MMA. Among other things, the policy provided life and total and permanent disability (TPD) cover. The life insured under the policy was Mr Francis Heron, who through a company he incorporated, FREMS Contractors Pty Limited, provided his services to MMA as a construction manager and project supervisor on an exclusive basis from about 2002 to November 2021. MMA claimed that Mr Heron suffered a “total and permanent disability” within the meaning of the policy following a left hip replacement he had on 19 November 2021. On 1 August 2022, the life policy was novated to the respondent, Zurich Australia Limited, following its acquisition of the insurance business carried on by OnePath.

The policy

  1. Clause 3.2.1 of the policy relevantly provides:

“If the life insured suffers total and permanent disability while their TPD Cover is in force and satisfies the conditions of the TPD definition which applies (as shown on the Policy Schedule and defined in section 3.2.1.2), we will pay the full TPD Cover amount insured by the benefit payment type which applies.”

At the time MMA made its claim, the “TPD Cover amount” was $2,954,908.

  1. Clause 3.2.1.2 relevantly provides:

“The terms 'totally and permanently disabled', 'total and permanent disability' and 'TPD' have the same special meaning under this policy. The meaning applying to the life insured will depend on the selection made by you and accepted by us and the age of the life insured. The TPD definition applying to the life insured before the policy anniversary when the life insured is age 65 will be shown on the Policy Schedule.”

The TPD definition selected in the Schedule was “Own Occupation”.

  1. Clause 3.2.1.2 contains the following definition of “Own Occupation TPD”:

“Own Occupation TPD definition

'Own Occupation' relates to the most recent occupation in which the life insured was engaged prior to the date of disability.

Own Occupation TPD means that, as a result of illness or injury, the life insured:

(1)        a)   has been absent from and unable to engage in their 'Own Occupation' for three consecutive months; and

b)    is disabled at the end of the period of three consecutive months to such an extent that they are unlikely ever again to be able to engage in their 'Own Occupation';

or

(2)   …

…”

  1. The word “occupation” is not defined in the policy. “Injury” is defined in the glossary of special terms to mean:

“… a bodily injury (including elective surgery a life insured undergoes that a medical practitioner advises is medically necessary for the life insured or another person) which either:

•   occurs during the period of the policy

•   was fully disclosed to us and we accepted as part of the application for Cover, or an application to extend, vary or reinstate Cover.

We do not cover elective surgery that is not medically necessary for the life insured or another person.”

  1. Clause 1.8 of the policy provides:

“Continuing cover

You may continue the policy each year upon payment of the premium, regardless of changes to the health, occupation or pastimes of each life insured.

The first policy anniversary date is 12 months after the policy start date (which is shown on the Policy Schedule). In advance of each policy anniversary date, we will send you an updated Policy Schedule which shows any variation to the cover(s) provided for each life insured, the amount(s) insured for each cover and the premium for the next 12 months.”

Factual background

  1. In mid-2021, Mr Heron, who was then aged 64, saw his general practitioner, Dr Peter Hay, complaining of hip pain. He was referred to Dr Michael O’Sullivan, an orthopaedic surgeon, who diagnosed Mr Heron as suffering from “arthritic change affecting the left hip”.

  2. Mr Heron ceased work on or about 12 November 2021. He underwent a total left hip replacement on 19 November 2021. The primary judge found that “the surgery was very successful”, that Mr Heron “has made an excellent recovery” and that he “cuts a vigorous figure as he moves about [his current work site] performing his duties” (a conclusion the primary judge was able to draw from several videos shown to him): J[2]. However, Mr Heron did not return to work at MMA.

  3. On 26 May 2022, Firths, solicitors, lodged on behalf of MMA an Initial Claim Form dated 20 May 2022 for a TPD claim in respect of Mr Heron together with several supporting documents. Those documents included Mr Heron’s Resume and a “Position Description of Mr Heron, during his employ with MMA Civil Pty Ltd”. They also included a OnePath Treating Doctors Statement dated 8 June 2022 completed by Dr O’Sullivan and an “Education, Training and Experience Questionnaire” signed by Mr Heron on 20 May 2022.

  4. The resume relevantly described Mr Heron’s “Site Specific Responsibilities” as:

"1.   Interpret plans and estimate costs and quantities of materials needed.

2.   Plan construction methods and procedures.

3.   Coordinate the supply of labour and materials.

4.   Supervise construction sites and direct site managers and subcontractors to make sure standards of building performance, quality, cost schedules and safety are maintained.

5.   Make sure that construction regulations, standards and by-laws are enforced in building operations.”

  1. The position description, which Mr Heron believed was created by Mr Shane McCarthy, the controlling mind of MMA, relevantly contained the following (quoted at J[75]):

“Responsibilities and duties

Responsibility 1 (Manual elements of the position) – The primary responsibility of this position will be to assist with the installation and commissioning of pipelines and assets that MMA construct such as sewer, watermain, stormwater, electrical and concrete structures.

—   Working with the site engineers / project manager to assist in the following important site-based tasks;

●   Site preparation

•   Excavation works to prepare the trench for pipe installation.

•   Assemble shoring boxes and set up the trench for safe access. Access would generally be from a ladder.

•   Setting up dewatering systems if required to keep the groundwater out from the trench.

●   Preparation of materials;

•   Prepare pits and pipes for installation.

•   This may include cutting concrete stormwater pipes to the required length.

•   Breaking out and cutting the inlet and outlets on the concrete reinforced pits to allow the pipes to pass through.

•   Using a con saw [concrete saw] to chamfer the end of the pipe to allow it to fit into the next pipe. This is manual task done with a con saw.

•   Lifting, positioning and bolting up watermain fittings.

●   Installation of pipes into the prepared trench.

•   Sling up pipes and guide excavator to position the pipe in the trench.

•   Enter the trench and use timbers and crow bars to fine tune the positioning of the pipe to get it into the exact position its required.

•   Repeat the process pushing the pipes manually into each other until the line is laid.

●   Commence backfilling of the trench.

•   This is generally a task done in collaboration with the excavator.

•   Excavator to drop in the soil to backfill the trench.

•   Material will then be manually compacted in small layers by hand using compaction equipment.

●   This position would be responsible for operating plant, small hand tools and completing the manual labour to accomplish the steps above.”

  1. In the Treating Doctor’s Statement, Dr O’Sullivan expressed the opinion that Mr Heron was “unable to perform [normal] duties” and in response to questions concerning whether he expected Mr Heron’s limitations to improve and, if not, his reasons, Dr O’Sullivan answered the first question “No” and gave as his reason “Ongoing limitations due to THR [total hip replacement]”.

  2. In a report dated 8 February 2024 (after the hearing had commenced) that was relied on by MMA at the hearing, Dr O’Sullivan gave the following explanation for his conclusions:

“At the time of his hip replacement Mr Heron was working as a hands on construction site supervisor. This involved the installation and commissioning of pipelines such as used, for example, for sewers, water mains, storm water drainage or electrical conduits. The site preparation work involved digging trenches which he would then have to get in and out of usually via a ladder. This also sometimes necessitated working in quite a confined space and performing tasks in this confined space. At times Mr Heron was required to walk along the pipes that were sitting in the bottom of these trenches or often on quite uneven or wet ground.

Following Mr Heron's total hip replacement surgery it was my considered medical opinion that he not return to his previous occupation.

My reason for this was that the work environment that was outlined to me by Mr Heron would, in my opinion, be quite unsafe for someone who has had a total hip replacement, albeit a very successful one.

It was my opinion that the work he was doing in these confined spaces was not appropriate as he could potentially run the risk of twisting awkwardly and dislocating his hip replacement. Also walking on the pipes, that at times could be wet, would raise the possibility of him falling and potentially fracturing his femur around the previously inserted femoral component.”

  1. On 8 July 2022, Dr Hay completed a Permanent Incapacity Medical Certificate in which he said:

“I confirm that after my consultations with Francis Heron, I have observed no clinical signs or symptomology that cause me to conclude he has any real chance of being able to engage in his own occupation, on a regular basis, to age 65, and has been so incapacitated since on or about 12 November 2021.”

  1. Following correspondence between Firths and OnePath on 13 July 2022 and again on 11 August 2022, OnePath asked that Mr Heron complete an “Occupational Questionnaire” setting out details of Mr Heron’s “duties, roles and responsibilities” and if they changed over time, separate questionnaires for each relevant period. The information was said to be required “to properly consider Mr Heron’s ‘own occupation’”. Firths refused to supply that information saying in a response dated 17 August 2022 to the second request:

“In relation to the Occupation Questionnaire, we have already advised you on 15 July 2022 that Mr Heron was self-employed, and he has already adopted the position description which has been previously provided to you. Further, the questionnaire does not address the issues falling for consideration since it asks Mr Heron to answer questions at number 2 regarding his ‘current’ occupation/job title. The remaining questions are also irrelevant in assessing his own occupation and total and permanent disablement particularly Question (f) since Mr Heron is not the policy owner. Lastly, Mr Heron has reached the retirement age in the policy held by MMA and hence, it has lapsed.”

  1. MMA commenced proceedings in October 2022. The case was fixed for a 3‑day hearing commencing on 30 January 2024. Before the hearing, on or about 16 October 2023, FREMS entered into an agreement with Jonishan Pty Ltd for Mr Heron to work as a project supervisor at the Badgerys Creek airport construction site. During late December 2023 and early January 2024, Zurich obtained video footage of Mr Heron working at that site. It was Zurich’s case at the hearing that the activities that Mr Heron engaged in at the Badgerys Creek site demonstrated that he was still able to engage in the activities of the occupation he carried on while working for MMA. The tender of the video footage resulted in the parties relying on additional medical evidence that was prepared after the hearing commenced and extensive cross-examination of Mr Heron, including cross‑examination of him by reference to the video footage: J[14].

The primary judgment

  1. The critical question before the primary judge was whether Mr Heron was, as a consequence of his hip replacement, unlikely ever again to be able to engage in the occupation in which he was engaged immediately before his operation.

  2. His Honour began the answer to that question by referring to uncontroversial principles relevant to the interpretation of commercial contracts as set out in decisions including Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35] and Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 at [16]-[17]: J[31]-[32]. His Honour then referred to the dictionary definition of “occupation” and several cases concerning the meaning of that word, including Minister for Immigration & Multicultural Affairs v Hu (1997) 79 FCR 309 (Hu): J[35], [55]. His Honour concluded (J[59]):

“The Court therefore concludes that to determine Mr Herron's [sic] ‘Own Occupation’ it is necessary to consider what specific tasks and duties he was in fact performing for MMA immediately before the date of disablement. However, the sum of those tasks and duties is not his ‘Own Occupation’: it is rather the specific job he was doing. To identify his ‘occupation’, it is also necessary to take into account matters such as his qualifications, experience, and job description or title to arrive at what will necessarily be a more generic descriptor. To use a biological metaphor, in my respectful view ‘occupation’ is comparable to a genus, whereas a particular job with its unique duties and tasks is a species of that genus.”

  1. Applying that definition, his Honour then sought to identify what Mr Heron’s occupation was by reference to several documents, including the application form for the insurance which included a section requiring Mr Heron to provide information about his “present duties” (which Mr Heron said in cross‑examination did not change over time), Mr Heron’s resume, which his Honour found was created by MMA “some time no earlier than 2019” (J[66]), the position description and an Education, Training and Experience Questionnaire, which was also included with the Initial Claim Form, as well as Mr Heron’s own evidence. His Honour concluded at J[101] that Mr Heron’s own occupation was “Construction Manager/Project Supervisor” for MMA, which involved the duties and responsibilities stated in his resume. In reaching that conclusion, his Honour rejected the position description as “a document upon which the Court can rely with any confidence” for several reasons. It was not Mr Heron’s document. Although Mr Heron referred to it in an affidavit he swore in support of the claim, he could not recall whether it was before him at that time and he said he had no idea about it. The document was incomplete because it referred to Mr Heron’s responsibilities but then only listed under the heading “Responsibility 1” the “Manual elements of the position”. The emphasis on the manual elements appeared to be inconsistent with his job description of “Construction Manager/Supervisor”. Finally, the document was prepared by Mr McCarthy and there was a real risk that it was “a self-interested MMA document”: J[109].

  2. His Honour also thought that Mr Heron’s evidence did not provide reliable evidence of the nature of his occupation while working for MMA. His Honour gave two main reasons. First, his Honour accepted that although “Mr Heron may have performed some manual work while in the trenches” that was not an essential part of his job or occupation, but rather was a case of Mr Heron “helping out” on occasions when he saw a task to be done, which was typical of his attitude to work: J[104], [112]. Second, his Honour thought that the evidence given by Mr Heron of the degree to which he engaged in physical activities was exaggerated, although not deliberately so: J[16]. On that point, his Honour said:

“110    I accept Zurich's submission that Mr Heron's evidence in re‑examination about the tasks he performed in trenches appeared to exaggerate what he was doing. For example, it was only in re‑examination that Mr Heron suggested that his work with MMA is 'completely different' to his work at Jonishan (Tcpt, 1 February 2024, p. 228(31-39)):

‘Well, the job I'm doing with Jonishan is solely supervision and just – just inspecting and liaising with foremen and meetings, and as I said, you know, if there's a little safety issue, a barrier or something like that, I will make sure it's – safety is priority. With MMA, it was completely different. I was hands on, down in deep trenches, a lot of sand, lot of running sand up to my knees.’

111    This evidence is inconsistent with other documentary evidence, the videos and Mr Heron's evidence that at MMA he would just be ‘helping out’ when he was performing manual tasks and that most of the digging was done by excavators.”

  1. His Honour then turned to the question of what activities Mr Heron was currently able to engage in and whether in the light of those activities he was unlikely ever again to be able to engage in the occupation in which he was engaged immediately before his operation.

  2. In relation to the first issue, the primary judge referred to a long list of activities that Dr O’Sullivan and Dr Robin Mitchell, an occupational physician called by Zurich, agreed Mr Heron could engage in: J[134]. Those activities were:

“•   Walking up and down stairs.

•   Walking over uneven ground.

•   Ascending and descending sloped ground.

•   Using a ladder.

•   Interpreting plans and administrative work.

•   Planning, construction methods and procedures.

•   Supervision based tasks and given directions to people.

•   Administrative exercises, knowledge of regulations, laws, bylaws.

•   Using a shovel.

•   Hand digging on the ground on soft soil even if it was in a confined space.

•   Erecting light cyclone style fencing.

•   Driving for extended periods.

•   Incidental lifting tasks for objects weighing between 3 to 4 kgs.

•   Attaching chains and ropes to various machinery.

•   Bending down.

•   Working 10 hour days.

•   Walking around a confined area (see Tcpt, 19 March 2024, p. 289(38)-(50)).”

This list was based largely on activities Mr Heron had been filmed engaging in while working for Jonishan. The primary judge also observed that the doctors accepted that “there would be no difficulty with Mr Heron getting into trenches by using a ladder, there was no difficulty with Mr Heron being on the ground doing some digging of soft surfaces … and using a shovel …”: J[153].

  1. Based on that evidence, the primary judge reached the following conclusions:

“158   The Court finds that Mr Heron is now able safely to perform all of the activities identified in [134] … and [153] above. However, as I have said in [119] above, that finding is a stepping stone to the essential question of disability. The area upon which the parties focussed was working in trenches. Based on the medical evidence, the Court finds that Mr Heron can safely use a ladder to go down into and up out of a trench for the purposes of supervising or inspecting work in a trench. This conclusion is fortified by Mr Heron’s own evidence of his situation after the surgery that ‘inspecting trenches, not a problem. It’s…all the manual work involved with it’ (Tcpt, 31 January 2024, 210(5)).

159   However, the Court also finds by reference to the medical evidence that there are some activities that Mr Heron cannot safely undertake in a trench. While a compendious finding is neither possible nor necessary, those activities include walking along a concrete pipe in a trench and undertaking work in a confined space in a trench that might put his hip into an ‘awkward’ position. …”

  1. In relation to the second question (whether Mr Heron would be able to engage in the activities of his own occupation in the future), the primary judge concluded that Mr Heron was not disabled to such an extent that he was unlikely ever again to be able to engage in those activities: J[160]. He gave three reasons:

“161   First, Mr Heron himself accepted that even when working at MMA, whether or not he had to get into a trench depended on the particular job and not every job required it. To use the language of the parties, the Court finds that the ability to do the things the Court has found Mr Heron cannot do in [158] [scil [[159]]] above is not an essential ability for him to be able to engage in his “Own Occupation” as found in [101] above.

162   Second, it is uncontroversial that the onus was on MMA to prove the facts to demonstrate that the policy should respond. There was no evidence adduced by MMA that Mr Heron would not be able to engage in his “Own Occupation” as found in [101] above by reason of his inability to undertake the activities identified in [159] above.

163   Third, the Court finds that Mr Heron is currently engaged in his ‘Own Occupation’ as found in [101] above by undertaking his current work with Jonishan. That is a matter which is relevant to the assessment of unlikelihood for the purposes of clause 1b as at 12 February 2022 (see [143] above).”

The grounds of appeal

  1. MMA identifies multiple grounds of appeal in its Amended Notice of Appeal. Many of them are overlapping, and not all of them are easy to follow. Some have embedded in them more than one ground. Rather than deal with each ground separately, it is convenient to focus on what appear to be the essential errors that are said to exist with the primary judgment.

  2. First, it is said that the primary judge took the wrong approach to the definition of the word “occupation” as used in the policy and in doing so placed too much emphasis on Mr Heron’s resume and inadequate weight on evidence of what Mr Heron did for MMA. Second, and related to the first point, it is said that the primary judge gave inadequate weight to the position description and to the description of Mr Heron’s duties contained in the application form in determining his occupation immediately before his hip operation. Third, it is said that the primary judge wrongly concluded that Mr Heron’s evidence of the nature and extent of the physical work he did for MMA was exaggerated. Fourth, it is said that the primary judge gave inadequate weight to the evidence from the medical experts.

The definition of “occupation”

  1. MMA contends that the primary judge’s conclusion that Mr Heron’s occupation while he was doing work for MMA was as set out in his resume rests on a false distinction between Mr Heron’s own occupation and a job, and on an over reliance on the Federal Court’s decision in Hu (ground 8). It also claims that the conclusion fails to take account of the purpose of the insurance and in doing so places insufficient weight on what Mr Heron did while he worked for MMA (grounds 9 and 11).

  2. There is some force in these criticisms of the primary judge’s reasons. The purpose of the insurance was not to protect Mr Heron against the possibility that, as a result of an injury, he would not be able to work. Rather, its purpose was to protect MMA against the possibility that, as a result of an injury, Mr Heron would not be able to continue to work for it. The terms of the policy recognise the distinction between life and TPD insurance designed to protect the life insured and life and TPD insurance designed to protect an “employer” by giving the insured an option of selecting which definition of “TPD” would apply. The “own occupation” definition was clearly intended to be the appropriate definition for insurance of the latter type. The word “occupation” as used in the definition of “own occupation” should be interpreted consistently with the purpose of providing protection to the employer. That conclusion is not altered by the fact that Mr Heron was engaged by MMA through his private company.

  3. The purpose of the policy and the definition of “TPD” selected by MMA was to protect MMA if Mr Heron’s services were, because of an injury, no longer available to it. In that context, the word “occupation” requires consideration of the actual activities carried out by the life insured in his or her most recent job, not whether he or she could carry out the same occupation according to some abstract taxonomy for the classification of different types of occupation.

  4. However, it does not follow from that that the only source of information concerning the tasks Mr Heron performed for MMA was Mr Heron’s evidence. The primary judge was entitled to consider the documentary evidence relevant to that question, including Mr Heron’s resume, and to place weight on that evidence, particularly if he considered Mr Heron’s evidence to be exaggerated on the subject. Nor does it follow that everything that Mr Heron did for MMA was part of his occupation. Rather, it was necessary to determine what things Mr Heron did for MMA that were essential or sufficiently important that they could be said to be part of his occupation rather than something that was merely incidental to it. The answer to that question depended on questions of judgment and degree and required consideration of matters such as the importance of the relevant activities to MMA’s business, the frequency with which Mr Heron engaged in them and whether they were part of what MMA might reasonably have expected Mr Heron to do.

  5. The decision in Hu is of limited relevance. That case concerned the question whether a delegate of the Minister for Immigration and Multicultural Affairs had made an error of law in rejecting an application by Mr Hu for a Class 126 (independent entrance) visa. The answer to that question depended on whether the delegate had made an error of law in concluding that Mr Hu’s “usual occupation” was that of an “electrical engineer”. “Usual occupation” was defined in the Migration (1993) Regulations 1992 (Cth) reg 2.4(4) to mean “an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa or entry permit”. The trial judge concluded that the delegate had made an error and that Mr Hu’s usual occupation was that of a scientist (physicist), not an engineer. In upholding that conclusion, the Full Court said (at 324):

“In our view, the delegate erred by interpreting the definition of ‘usual occupation’ as requiring attention to be focused exclusively on the tasks performed by the applicant during one particular period of employment. Properly construed, the definition required the delegate to take into account not merely those tasks, but the applicant's training, qualifications and work experience, although the significance of these matters will depend on the circumstances of the individual case. In consequence of the error of law the delegate failed to direct attention to the qualifications obtained by the applicant in China and the way in which his scientific skills had been applied in the workplace. In turn, this caused the delegate to apply par (c)(i) of item 7102 in a manner that may have involved the incorrect inquiry.”

  1. Two things may be said about the decision in this context. First, it is apparent that the Federal Court was concerned with the meaning of a different phrase (“usual occupation”) and in a very different context than the phrase and context in issue in the present case. Second, it appears that the primary judge relied on Hu principally as authority for the proposition that in identifying a person’s occupation it is necessary to consider not just the tasks the person was performing at a particular time (in the present case, what Mr Heron did on a particular job) but what the person did more generally and to consider that question by reference to documentary evidence including the person’s resume as well as evidence of what the person actually did. Both those propositions are uncontroversial.

  2. Moreover, although the primary judge was inclined to adopt a taxonomic approach to the identification of Mr Heron’s occupation consistently with the approach taken in Hu, it is apparent that when addressing the critical question whether Mr Heron was unlikely ever again to be able to engage in his own occupation, his Honour did focus on the activities Mr Heron could do following his hip replacement and compared that to what Mr Heron did when he worked for MMA.

  3. In relation to what Mr Heron could do following his hip replacement, the primary judge set out a long list of physical activities that Mr Heron can still perform. No challenge is made to those findings.

  4. The primary judge also sought to identify what physical activities Mr Heron engaged in while working for MMA. In rejecting Mr Heron’s evidence that the work he did for MMA was “completely different” from the work that he was now doing for Jonishan, his Honour made two points. One was that Mr Heron tended to exaggerate the difference and the degree to which his work at MMA required him to engage in physical activity: see [22] above. The second was that some of the physical activities Mr Heron engaged in were examples of him “helping out” on occasions and were not essential parts of his job. As the primary judge explained:

“81   When pressed on what sorts of manual work he did for MMA, Mr Heron accepted that a lot of the digging work in trenches was done by excavators, but he would sometimes use a shovel a ‘little bit’ (Tcpt, 30 January 2024, 60(45)-61(5)). He also provided evidence that some of the other incidental manual work he did included ‘erecting barriers’, typically cyclone fencing weighing a maximum of three or four kilos (Tcpt, 30 January 2024, 61(10)-(25)). Mr Heron also accepted that even though his duties may have varied project to project it was ‘mostly supervision and looking after guys and organising stuff’ (Tcpt, 30 January 2024, 62(38)-(40)).

82   It also became apparent that what he described as work in trenches was done on the ‘odd site’ and reflected his desire to ‘help out’ (Tcpt, 31 January 2024, p.202(29)-p.203(19)).”

And later at J[104]:

“[E]ven Mr Heron accepted, as common sense would suggest, that his particular tasks changed with different jobs and he did not have to get down into trenches at every project. What is clear is that when he did so, he did it for the purpose of managing or supervising the project. To the extent he may have picked up a shovel, the Court finds, to his credit, that he was doing so to ’help out’ and not because his occupation required him to undertake labouring tasks.”

  1. Similarly, the activities that Mr Heron could no longer undertake were not an essential part of his own occupation: see [26] above.

  2. Consequently, although the approach taken by the primary judge to the definition of “own occupation” may have been erroneous, his Honour made no error in applying the definition to the facts of this case – that is, his Honour correctly sought to determine whether Mr Heron, following his hip replacement, was unlikely to be able to continue to carry out one or more of the essential or important tasks that he had previously performed for MMA.

The position description and the description of duties in the application form

  1. MMA claims that the primary judge erred in rejecting the position description (ground 6). It gives three reasons. First, the document was confirmed “at least for the most part” by Mr Heron’s evidence. Second, the reasons given by the primary judge for rejecting the position description were “insufficient in any event”. Third, the contents of the position description were confirmed with Mr Heron by Dr Mitchell.

  2. MMA also raises an issue concerning his job description, although it is not easy to follow the point made by MMA in this context. The relevant ground of appeal (ground 13) is in the following terms:

“Mr Heron explained the terms in which he wrote his application form (5% light labour if at all) by drawing attention to the word ‘underground’ (understood to refer to work in trenches) to which he allocated 75% for all the relevant activities included in that item (Tr 208).”

MMA did not address this ground specifically in its written or oral submissions.

  1. As to the position description, MMA’s principal complaint is that the document reflects the effect of Mr Heron’s evidence, which the primary judge ought to have accepted. That issue is dealt with below. MMA also suggests that the absence of a “Responsibility 2” was of no consequence and the fact that the document used the future tense (for example, “The primary responsibility of this position will be to assist with the installation and commissioning of pipelines …” (emphasis added)) was inconsistent with the document being prepared for the purposes of the claim. These criticisms are misplaced. The primary judge was correct to point out that the document was not Mr Heron’s document, that Mr Heron appeared to have no idea about the document when he was cross‑examined about it, that it was obviously incomplete and that it was difficult to reconcile with other evidence concerning Mr Heron’s role at MMA, which was primarily a supervisory one. His Honour was entitled in those circumstances to conclude that little weight could be given to the document in determining what Mr Heron’s role at MMA was.

  2. So far as the evidence given by Dr Mitchell is concerned, although Dr Mitchell was asked to “take a history from Mr Heron concerning his duties and responsibilities as a ‘Construction Manager/Supervisor’”, it is apparent that in response to that request, Dr Mitchell has merely quoted the position description. It is unclear from what Mr Mitchell says whether Mr Heron adopted that description. But even if he did, this evidence takes the matter no further than the other evidence given by Mr Heron about the position description.

  3. In response to a further question concerning Mr Heron’s responsibilities, Dr  Mitchell did say this:

“He explained that many of the administrative aspects required were able to be undertaken at the site office to a degree, but the majority of his working time was spent outside, on site, where he had to walk about the construction site over uneven ground surfaces and climb steps and ladders on a frequent basis for up to 80% of his time.”

However, those activities were all activities that the medical practitioners agreed that Mr Heron could continue to do.

  1. As to the application form, the relevant section of the form listed various types of work and asked Mr Heron to indicate what percentage of his time was spent on tasks of that type. In relation to “Sedentary/Administration (e.g. filing, computer work, answering telephone, reception duties)”, Mr Heron said 20%. In relation to “Manual work – light (e.g. driving, warehousing, surveying, lifting under 5kg)”, Mr Heron said 5% “(if any at all)”. In relation to “Site visits/inspections (e.g. real estate sales, building industry inspector, contractor, underground)”, Mr Heron said 75%. Mr Heron left the item described as “Manual work – heavy” blank, suggesting that he did no work of that type. In cross‑examination, Mr Heron explained that included in the 75% was the inspection of trenches. The primary judge considered this evidence: J[64], [108]. His Honour correctly thought that the evidence supported the conclusion that Mr Heron’s responsibilities while working for MMA involved a minimal amount of manual labour.

Findings in relation to the reliability of Mr Heron’s evidence

  1. Many of the grounds of appeal relate to the primary judge’s conclusion that Mr Heron exaggerated the extent and nature of the physical activities he engaged in when working for MMA. MMA submits that that finding was not available to the primary judge for two principal reasons. First, it is said that the finding is inconsistent with concessions made by Mr Lloyd SC, senior counsel for Zurich, when MMA sought to lead additional evidence in re‑examination concerning Mr Heron’s credibility. The effect of those concessions is said to be that the primary judge was required to accept evidence given by Mr Heron, with the result that his Honour ought to have concluded that Mr Heron’s own occupation required him on occasions to undertake tasks that he could no longer undertake because of his hip replacement. Second, it is said that it was not open to the primary judge to conclude that Mr Heron had a tendency to exaggerate when that was not put to him and was not a submission made by Zurich.

  2. The first point is most clearly stated in grounds 1 and 2, which are in the following terms:

“1   His Honour erred in failing to refer to or take into account in the reasons for judgment concessions made during the re-examination of Mr Heron recorded at Tr 240-246 accepted by the court and by counsel for the appellant at trial ("the concessions") and by failing to make findings consistent with the concessions in the reasons for judgment.

2    In particular if his Honour had adverted to the concession it was not open to his Honour to make findings about the so-called tendency of Mr Heron to exaggerate or the rejection of any evidence given by him without corroboration (J15-J17) and in any event no tendency to exaggerate was mentioned by counsel for the respondent or by his Honour at any stage during the trial.”

  1. In re-examination, Mr Gollan, who appeared for MMA, sought to tender photographs showing Mr Heron undertaking work for MMA and to ask questions of Mr Heron about those photographs with a view to establishing the types of activity Mr Heron engaged in while working for MMA. The first photograph put to Mr Heron showed him using a concrete saw. During argument on the question whether Mr Gollan should be permitted to tender the photographs and to put questions to Mr Heron of that type in re-examination, the primary judge indicated that the questions and photographs would be inadmissible in re‑examination to the extent that they were directed at giving details of what in fact Mr Heron did while he was working for MMA. That evidence ought to have been given in chief. However, his Honour indicated that the evidence might be admissible in re-examination to the extent that it had been put to Mr Heron in cross-examination that he was not telling the truth when he gave evidence about the work that he had done and the photographic evidence corroborated the evidence Mr Heron had given in cross-examination – in particular, in the case of the first photograph that prompted the objection that Mr Heron had used concrete saws while working for MMA. In response to that point, Mr Lloyd said that he would not be submitting that Mr Heron had not used concrete saws while working for MMA. More generally, after his Honour was taken to photographs showing Mr Heron engaged in other activities while working for MMA, Mr Lloyd said:

“Your Honour, I should say this, in terms of his personal credibility, I’ll tell your Honour right now the submission I’ll be advancing is that he is yet another fundamentally honest witness. In saying that, there are some things that I will be saying to your Honour about at least misleading aspects in the affidavit material, and a couple of things when he said ‘solely supervision at Jonishan’, but with some exceptions. He’s a witness who’s fundamentally honest, who’s adopted words which have been written by other people, which are wrong and have had the capacity, if not explored in cross-examination, to mislead the Court. But I’m not going to be saying he came to this Court with the intention sitting in the witness box of telling lies and is a witness who’s not credible in that sense.

And we’ve all seen him, and for example, his work ethic is prolific. And he’s just not a witness who I’ll be saying is someone who you should reject, because he’s incredible [scil, credible] I will be saying this position description is not a fair summary of the things he was doing at MMA.”

  1. A short time later, after the morning tea adjournment, the following exchange occurred between the primary judge and Mr Lloyd:

“HIS HONOUR: Mr Lloyd, I’ve had a look at the transcript again, and there are a number of points in the cross-examination on that job description document where you suggest to the witness that, in fact, he didn’t do that work, that particular task, and he says he did. Are you going to be suggesting I should not accept his evidence when he says he did that particular work?

LLOYD: No.

HIS HONOUR: So you will be content for me to accept his evidence when he says, I did in fact do job X, is that right?

LLOYD: Yes.

HIS HONOUR: All right.

LLOYD: May I just say, there’s a slight detail in - I don’t think it cuts across what’s fallen from your Honour and what I’ve just said - I asked him about the reference to all physical aspects, for example, in digging the trenches, and he said excavators do that. So obviously I rely upon that answer.

HIS HONOUR: Yes.

LLOYD: But that doesn’t cut across what your Honour--

HIS HONOUR: Well, I don’t think there’s a suggestion that he was down there with a shovel digging the hole of the trench, so--

LLOYD: Correct.”

  1. Following further discussion in which Mr Lloyd made it clear that “My submission will be that the resume description is the accurate description of the core or key or essential responsibilities”, the primary judge said:

“Yes. It seems to me that in circumstances where Mr Lloyd is not going to challenge the credibility of the answers given by the witness as to when it was put to him something was untrue, and he said, ‘Well, I did do that work,’ in those circumstances, these photographs are irrelevant, unless there is some other basis you wish to press them on.”

No other basis was advanced by Mr Gollan and the photographs were not admitted.

  1. Contrary to the submissions of MMA, there is no inconsistency between the concessions made by Mr Lloyd and the conclusions of the primary judge. The concessions concerned the truthfulness of the answers given by Mr Heron to questions concerning the activities he engaged in while working for MMA. On the other hand, the conclusions of the primary judge concerned the frequency of those activities and whether those activities formed an essential part of Mr Heron’s occupation while working for MMA. That called for an evaluative exercise that did not depend solely on conclusions regarding what Mr Heron did.

  2. In addition, the primary judge’s conclusions regarding Mr Heron’s credibility need to be understood in context. The evidence given in chief by Mr Heron concerning his activities while working for MMA was very brief. Relevantly, it consisted of the following two paragraphs in his first affidavit affirmed on 7 February 2023:

“4   Ever since I ceased work, I have been unable to engage in the duties of my own occupation. As my resume and job description reveal, I was a hands-on director of my own company, subcontracting solely to MMA Civil. It has been impossible, following my total left hip replacement for me to perform the actual physical duties listed in the position description. There was not much in the way of paperwork for me to perform because the paperwork that was required to be completed, was completed primarily by engineers employed by MMA.

5   I turned 65 on 9 May 2022. I was told by Dr O'Sullivan and my GP, Dr Hay that I am unable to return to my own occupation and that this is permanent. I am unable to return to my own occupation because of the physical duties required. Whilst I also performed supervisory work of employees of MMA Civil, I was still required to perform physical tasks and ensure that the employee tasks were completed. That meant I was required to inspect trenches and the laying of pipe. There has not been a time since my surgery that I could have returned to my own occupation. I have to be very careful in performing simple tasks, such as walking up and down stairs, walking over uneven ground, or ascending, and descending slopes. I feel that my balance has deteriorated, and I [am] conscious and protective of my left hip.”

  1. In a second affidavit affirmed on 16 January 2024 (after Mr Heron had started working for Jonishan), Mr Heron said:

“9   I spend about 2 to 3 hours out of an 8-to-10-hour day in a demountable office, performing paperwork and reviewing documents. I then spend about 4 or 5 hours driving along the 12 km long worksite and stop at each section to speak to the foreman/leading hands. My actual speaking time with each of these people make up the remainder of my time.

10   I have never been required to climb into or out of a trench and I could not do so if required. The site has been cleared and there are unsealed roads, which have been carved through the site that I drive on. Whilst I will walk around the perimeter of these construction sites, all I do is walk on the ground surface for short distances to talk with colleagues and other site employees.”

  1. Mr Heron was cross-examined extensively on both affidavits and on the position description. As I have explained, Mr Heron was also cross-examined extensively on the work that he did for Jonishan by reference to the video footage with a view to demonstrating that Mr Heron was still able to undertake many of the activities that he undertook while working for MMA and that the bald statements contained in his affidavits were not correct. One example of evidence of this type, although it comes from evidence given by Mr Heron in re‑examination in response to questions from the primary judge, is the following taken from a passage of the transcript quoted at J[84]:

“Q. I see. And are you saying to me that from time to time you did some of the shovel work [while working for MMA]?

A. I definitely did.

Q. And was that similar to what I – the sort of shovel work I saw you doing on the screen?

A. Definitely not.

Q. Why not?

A. Because I think the shovel you – on the screen there, I think there was a little bit of clay just on the road and I just shovelled it out of the way.”

  1. It is apparent that Mr Heron both in his affidavit evidence and in some of his oral evidence was quite dogmatic about the types of work that he did while working for MMA and the types of work that he can do now which was difficult to reconcile with other evidence he gave and with the video recordings obtained by Zurich. The primary judge had the advantage of seeing Mr Heron in the witness box and considering all the material. It was on that basis that he formed the opinion he did concerning Mr Heron’s credibility. There was ample evidence to justify that finding and that finding itself was consistent with the concessions made by Mr Lloyd. It was not a finding that Mr Heron had not performed some of the tasks he said he did while working for MMA. Rather, it was a conclusion that Mr Heron had exaggerated the extent of the physical activities he had engaged in while working for MMA and the degree to which those activities were different from the activities that he continues to engage in while working for Jonishan.

  2. Moreover, the only specific activities that the medical evidence established that Mr Heron could not do that it was suggested he had done while working for MMA were “walking along a concrete pipe in a trench and undertaking work in a confined space in a trench that might put his hip into an ‘awkward’ position”: J[159]. His Honour concluded that MMA had not established that they were essential aspects of the work that Mr Heron did for MMA and consequently had not established that Mr Heron would not be able to engage in his own occupation as a result of being unable to undertake those activities. The finding that those activities were not an essential aspect of the work that Mr Heron did for MMA is not challenged.

  3. MMA’s second point in this context is most clearly expressed in ground 10, which is in the following terms:

“His Honour erred in finding that Mr Heron had a tendency to exaggerate (J15, 16 and 17), because of the concessions and because such a thing was not put to him by the cross-examiner or the judge.” [emphasis added]

  1. The point highlighted is evidently a reference to the rule in Browne v Dunn (1893) 6 R 67 (HL). That rule was explained in the following terms by Gummow, Kirby and Callinan JJ in MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [38]:

“The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.”

  1. In the present case, Mr Heron was cross-examined extensively with a view to establishing that he could and in fact did undertake many of the physical activities that he had previously undertaken while working for MMA and that a number of the activities he said he undertook while working for MMA were not an essential part of his job. He and MMA were plainly on notice of the case that they were required to meet and were given an opportunity to answer it. The view that Mr Heron had a tendency to exaggerate was an evaluative conclusion based on that cross-examination. It was not a conclusion that needed to be put to Mr Heron separately. As Bray CJ explained in Thomasv Van Den Yssel (1976) 14 SASR 205 at 207:

“The rule in Browne v Dunn has much more force when applied to evidence relating to a particular fact or topic than when sought to be applied to the general credit of the witness, though even in the latter case the failure to cross‑examine at all may, in appropriate circumstances, be taken as an acceptance of the general credit of the witness as well as the truth of his evidence on particular matters unless the evidence is patently absurd or incredible.” [Footnote omitted]

The qualification referred to by Bray CJ where a witness is not cross-examined plainly has no application in this case.

  1. In relation to Mr Heron’s credit, it is not correct to say that MMA was not put on notice that the primary judge might find that Mr Heron’s evidence was exaggerated and was not given an opportunity to deal with that possibility. During final submissions, the following exchange occurred between the primary judge and Mr Gollan:

“HIS HONOUR: In weighing up evidence - I mean, I know Mr Lloyd hasn’t made a credit submission, but I’ve still got to weigh up the various bits of evidence that Mr Heron gave to the extent his views on anything are relevant and we’ve already established that they’re probably not very relevant. But, for example, his evidence is, ‘I am protective of my left hip.’ Well, I have to say that, having watched all that footage, I saw no signs of protection of his left hip. That probably doesn’t matter at the end of the day.

GOLLAN: No. Well, it doesn’t - with respect to the issue--

HIS HONOUR: But I expose that so you can engage with it if you want to, Mr Gollan.

GOLLAN: No, I know, your Honour. What it comes to is what was put to him that he regularly agreed with was that he did things carefully. And it’s difficult to see whether or not someone, unless they’re gingerish about it, is doing something carefully or not doing something carefully.

HIS HONOUR: I think that’s the [sic] rather the point here.

GOLLAN: It’s one to their state of mind, really.

HIS HONOUR: But a reasonable amount of care is probably invisible on screen because you’re just doing it in a sort of sensible way.

GOLLAN: As one would hope.

HIS HONOUR: I do think, again, just in fairness, so you can engage with it, that he was - I think he exaggerated the care with which he felt he had to do things, but I think that was his personality coming through. But, again, it--

GOLLAN: Might I say--

HIS HONOUR: --doesn’t matter.

GOLLAN: --in protection of him to some extent, your Honour, that he probably is in an environment that is very foreign to him and he wanted us to understand that he wasn’t being careless.

HIS HONOUR: I’m not being critical and I also - you know, a trial judge has the advantage of seeing the personality of a man. Frankly, in some respects, he came across to his great credit as - I can’t put this in a judgment, really, but he came across as a bit of an energiser bunny. You saw him running around, doing the things he was doing now. That’s his personality. I accept that.

GOLLAN: And to his credit.

HIS HONOUR: I’m not saying he was dishonest. But he is the sort of person who was certainly telling me a lot about how careful he had to be.

GOLLAN: I tend to agree.”

  1. In the light of that exchange, it cannot be suggested that MMA was not on notice of the findings that his Honour might make or that it was not given an opportunity to make submissions on the issue.

The expert medical evidence

  1. MMA contends that the primary judge had insufficient regard to the medical evidence. This contention is most clearly stated in ground 14 (see also ground 4), which is in the following terms:

“As to the medical evidence of Dr O'Sullivan and Dr Mitchell, his Honour does not mention that Dr O'Sullivan advised him to leave his job, for reasons identified by the doctor at Tr 262 and Dr Mitchell expressed his agreement that he could not go back to his employment with the plaintiff and shortly after the surgery Mr Heron effectively resigned his employment, another fact to which his Honour does not refer.”

  1. The difficulty with this ground (and ground 4) is that on the findings of the primary judge, the medical evidence MMA refers to was based on a misunderstanding of the activities that Mr Heron was required to perform while working for MMA. The medical experts were cross-examined extensively on what Mr Heron could and could not safely do by reference to the video recordings. The primary judge took account of that evidence in setting out the list of activities that Mr Heron could still safely do at J[134].

  2. During cross-examination, Dr O’Sullivan gave this evidence:

“The main concern I had when Mr Heron described the job that he was doing was that it involved getting down into trenches and working along pipes often in uneven and wet ground. My primary concern - well, two-fold, really. The first one was that he would fall and suffer what we call a periprosthetic fracture. That refers to a fracture around the implants that have already been implanted and that’s a recognised complication of total hip replacement surgery.

It’s, thankfully, quite rare but the consequences of that, obviously, lead to further surgery and, ultimately, the result can be less than favourable. The other concern I had is Mr Heron, from memory - I haven’t seen him for a little while - is a large-ish man and I did have some concerns of him working in confined spaces often, sort of, on his haunches or - or, sort of, on his knees and this could potentially put his hip into a position in which that he then dislocated his hip, which again is a fairly devastating complication of total hip replacement surgery.”

  1. Dr Mitchell agreed that Mr Heron could not safely undertake those activities following his hip replacement. The primary judge was conscious of that evidence and accepted it when he described at J[158] (quoted at [25] above) the things that Mr Heron could not do. However, on the findings of the primary judge those activities were not an essential part of the work Mr Heron did for MMA.

Conclusion

  1. It follows that, in my opinion, the appeal must be dismissed with costs.

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Decision last updated: 16 June 2025

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