Satra v Mmi No. DCCIV-97-1530

SATRA & SAJC v MMI
[2000] SADC 41

Judge Muecke
Civil

Introduction
In this action the plaintiffs claim $80,000 from the defendant under an insurance policy. (I shall refer to the plaintiffs as the ‘Jockey Club’ and to the defendant as the ‘insurer’.)
As at 14 March 1994 Ms Debra Lloyd was licensed by the Committee of the Jockey Club, pursuant to the rules of the club, to ride as a jockey. Whilst riding at a race meeting on that day at Morphettville Racecourse, she fell from her horse ‘Solar Pilot’ and suffered injuries. (Ms Lloyd married in January 1998 and thereafter adopted her husband’s surname Hall. For convenience I shall refer to her in these reasons as Ms Lloyd.)
As a result of the injuries suffered in the fall on 14 March 1994 she has been unable to, and has not, ridden as a race jockey. Her inability to ride as a race jockey is total and permanent.
As at 14 March 1994 the insurer had agreed, pursuant to a policy of insurance, to pay certain benefits to the Jockey Club. The insurer was not to be liable in any way for how the Jockey Club might disperse any benefits paid to it by the insurer.
The benefits included:
(a) $80,000 where a jockey suffers injury whilst riding in a race resulting, solely and directly and independently of any other cause, in Permanent Total Disablement.
(b) $50,000 where a jockey suffers injury whilst riding in a race resulting in Permanent Total Disablement to continue riding as a professional jockey or apprentice in races, track work, or barrier trials.
The policy provided that, where applicable, the sum of $50,000 is in addition to the sum of $80,000.
I was told that the Jockey Club had under its Rules established a fund known as the Discretionary Benefit Fund. Ms Lloyd was eventually paid $130,000 from that fund. That payment comprised the sum of the two amounts referred to above.
It was common ground between the parties at trial that Ms Lloyd was permanently and totally disabled in the fall from continuing as a jockey and accordingly, the Jockey Club would be entitled to payment by the insurer of $50,000 under the policy. I was told that such payment was treated as a deductible under the policy and accordingly, was not paid by the insurer and is not sought to be paid by the Jockey Club.
In this action the Jockey Club asserts that it is entitled to be paid $80,000 by the insurer because Ms Lloyd suffered an injury whilst riding in a race which resulted in her Permanent Total Disablement under the policy. The insurer says that, whilst Ms Lloyd suffered Permanent Total Disablement to continue riding as a professional jockey as a result of her injuries from the fall, her injuries have not resulted in her Permanent Total Disablement within the policy.
The policy provides certain benefits:
‘If an Insured Person suffers Loss, Injury or Illness from an Event defined under any selected Section of Schedule G we will pay the Benefits set out in that Section in the circumstances and happening of occurrences described in Schedule C but subject to the GENERAL TERMS, CONDITIONS AND EXCLUSIONS of this Policy and also those contained in each Section.’
Schedule G includes this Event:
‘Injury resulting solely and directly and independently of any other cause in ... Permanent Total Disablement - 100% of $80,000.’
The policy defines Permanent Total Disablement:
‘PERMANENT TOTAL DISABLEMENT means the inability directly and solely as a result of Injury (caused other than by loss of limb or eye) from engaging in any occupation for which the Insured Person is fitted by reason of education, training or experience, which has lasted for a period of at least twelve (12) consecutive months and which will continue permanently.’
Ms Lloyd was an Insured Person under the policy.
The policy also provides that any Event referred to in the Schedule of Capital Benefits ‘must occur within twenty-four (24) months of the date of injury’.
It is the construction of these and other provisions of the policy, and their application to the facts, which are the issues in this case.
The evidence of Ms Debra Lloyd
Ms Lloyd gave evidence at the trial. She was an impressive witness and I have no hesitation in accepting her as a truthful witness. Furthermore, I consider that, subject to some exceptions, her evidence is a reliable basis upon which I can make findings.
She was born on 23 April 1958 and spent her school years at the Gawler High School from which she matriculated. She started riding horses when she was three years old. Up until the age of 18 or 19 years she competed in the show circuit and had started hunting. When she finished school she had difficulty finding a job in the country because she did not have a motor car. As she had ridden some track work for her father whilst at school, that experience enabled her to start riding track work for a living. In the years that followed she rode track work for a number of trainers at the racecourse at Gawler.
Later, when her father started getting involved in the pacing industry, her mother obtained a licence to train gallopers. She then rode track work for her mother at the Gawler racetrack.
A few years later she was employed for three months at Roseworthy Agricultural College pursuant to a training employment scheme. She worked as a laboratory assistant which involved setting up the laboratories for students’ practical lessons and then cleaning up afterwards. After that period she applied for and obtained a job at the Adelaide High School as a laboratory assistant. That job involved similar work to that which she had done at Roseworthy, although the practical laboratory sessions were more basic at Adelaide High School than at Roseworthy.
Whilst working at Adelaide High School she continued to ride track work for her mother in the early mornings before work. She was only working part time at the high school and after work she would help her mother by feeding the race horses and cleaning up.
In about 1979 the rules of the Jockey Club were changed to allow the licensing of female jockeys. In that year, when Ms Lloyd was about 21 years of age, she applied for and gained an apprenticeship with her mother as her Master. She resigned from the Adelaide High School and became the first female apprentice in South Australia. As an apprentice she rode just over 100 winners, mostly on the country circuit. She rode for a number of different trainers. As the first female apprentice in South Australia she received a deal of publicity.
She completed a three year apprenticeship and became a senior jockey in 1982. She continued to do a small amount of track work but most of her time was spent on the phone to trainers and owners, on the road travelling to various racetracks throughout South Australia and riding three or four times a week at races and barrier trials.
In her 15 years as an apprentice and senior jockey Ms Lloyd had 4,500 rides and rode 450 winners, 350 of them as a senior jockey. Over that time she received publicity as a female jockey, came to know a number of owners and trainers of race horses and earnt a significant income as a jockey. In the three years before March 1994 she rode more winners and obtained more rides on the metropolitan circuit than during any previous period in her career. In March 1994 she was aged 35 years.
On 14 March 1994 when riding at a race meeting at Morphetville Racecourse, she fell from her horse. The next thing she remembers is a doctor coming to her bedside at the Royal Adelaide Hospital saying to her that she had died in the fall. She said she was in the Royal Adelaide Hospital for six weeks and was then transferred to the Julia Farr Centre where she stayed for six or eight weeks. She had suffered three broken ribs in the fall but she wasn’t aware of having broken ribs because they had healed whilst she was either in a coma or semi-conscious.
After her release from the Julia Farr Centre she resided in a house at Murray Bridge which she had rented prior to the fall. Her mother, also residing in Murray Bridge, was training horses at the racetrack there. Upon her release from the Julia Farr Centre, she was hoping to resume work by helping her mother with her horses. She said that once she realised she had suffered a brain injury she didn’t really think about going back to race riding because of a fear that if she made a mistake she could cause a fall and hurt someone else. She came to that realisation soon after leaving the Julia Farr Centre. Having suffered a brain injury, Ms Lloyd had to surender her driver’s licence and because of the difficulties that involved, she did not try to return to work at that time.
Whilst she did not believe she could get back to race riding, in about September 1994, out of stubbornness, she started riding track work for her mother. That involved trotting and cantering one of her mother’s horses for 10‑15 minutes, three times a week. She pushed herself into doing this riding because she was determined to try and help her mother and to ascertain what her capabilities were.
She found, however, that she was not capable of doing track work in the way she had done before her fall. Previously, when riding track work, she had a responsibility to give feedback to the trainers as to how their horses were performing. After her fall she felt that she was unable to work out what the horses were doing and as a result, could not contribute to improving their training. In addition she felt nervous and not confident on her mother’s horse for the first time. She did not have control over the horse and could not predict the horse’s movements. She toppled off her mother’s horse once or twice in a way that she had never fallen off a horse before. She attributed that to a lack of balance and an inability to predict what the horse was going to do. She was ‘sort of just a passenger rather than in control’.
In September 1994 she was told about a job at Roseworthy College that was to be advertised. She thought it might enable her at least to try to ride track work and to get back to working in the horse industry.
The job at Roseworthy was a full-time job within a new project at the College. The project was designed to educate the students about the thoroughbred and trotting industries and to use the College’s facilities for pre‑training of race horses. Once operational trainers would provide their horses to the College for a certain period of time for pre-training, and would pay the College. The job was for the technical officer in charge of the pre‑training of race horses. Ms Lloyd understood that if she was the successful applicant she would be required to organise the horses’ work programs and to ride them for the first three or four weeks that they were there. Her duties would include organising the horses’ feeding, when they were worked and what work they were given, and other normal duties like cleaning up. Much of this work would be done in association with students who were mostly resident at the Roseworthy campus. It was part of their course to observe and take part in the activities of this pre‑training exercise. Ms Lloyd was attracted to the job because it offered her the opportunity to prove to herself that she could get back into society and into working in the horse industry. She applied for the job but she did not think that her application would be successful.
When she made her application to Roseworthy she was ‘keen to utilise her skills in the preparation and maintenance of horses’. She wanted to try to gain some worthwhile employment. Based on her past experience she thought the job would probably be the only one she would be qualified for. Professor Jones had said that he saw no problem with her returning to riding and gave her permission to do so. She believed at that time that she had made a good recovery from the fall. She said ‘it was almost in desperation I applied for the job’ because her mother was concerned about not being able to employ her after her compensation payments finished. Ms Lloyd described the job as offering her hope to find a future because she had come out of Julia Farr totally depressed and that depression had not dissipated after she had left Julia Farr. At her interview for the Roseworthy job she indicated that, at least as far as she could tell, she was not having any health problems and that she would be able to ride track work.
She was offered the job and she accepted the offer. Her commencement date was 2 November 1994 and the written contract of employment was for a duration of six months. Her appointment could be terminated by herself or by her employer with one month’s written notice. The offer of employment was made by Luminis Pty Ltd although the evidence was that the employer was Unitrain Pty Ltd. She was very pleased to be offered the position and she was looking forward to being able to work because the job provided an opportunity to get back into the industry she knew rather than having to retrain for other skills. At that time, desperate to return to a useful lifestyle, Ms Lloyd believed she had made a sufficient recovery to start working again, even though her level of fitness was much less than it was as a senior jockey.
At the time she started the job she was ignorant about her brain injury and was unaware of what her limitations were as a result of her injury. She had to learn about her disabilities, but she started the job with a positive frame of mind.
Whilst Roseworthy could accommodate anything up to 30 horses, during the time she was there there were usually only two horses each week. In relation to feeding the horses some of the time she fed them but generally she would work out rosters for the students to either do things with her or alone. After feeding she would work the horses. She would also clean out the stables occasionally, but many times the students would do that work. She would ride the two horses in pre‑training and would sometimes get students to accompany her on their own horses because it was a lot easier for her to ride in company with another horse than on her own.
She did not find the work at Roseworthy easy to do. She would get through the day by having students around to assist her and to talk to, but by the end of the day she ‘would be very jittery and shaky’. When asked how she coped with riding the horses she said - ‘I struggled through it. I got through it as best I could, but I really don’t think I was showing any competency with it’. She had lost her ‘bounce I suppose is what you call it’ in the saddle. She was ‘very tense and very tight’ when on a horse and was therefore unbalanced. Horses would feel her insecurity and do whatever they wanted to do, and she felt she could not stop them from doing so.
Even when cleaning out the stables she required direction because she had forgotten what had to be done and the technique for doing it.
She suffered fatigue doing the work, and every now and again her left leg would go numb and not have any strength. She couldn’t run or even get the movement to run. Her general flexibility was not the same as before the fall. Many times she had no strength and little co-ordination. At Roseworthy she had two falls off horses which she felt were inexplicable. The circumstances of each fall were such that she would not have fallen off before the accident.
During her time at Roseworthy Ms Lloyd developed a habit of doing her early morning work at the campus and would then drive to her father’s house, which was in the Roseworthy area. She would spend the middle part of the day there and would then return to the College in the evening to do the evening chores, which involved feeding the horses and cleaning out the yard. Sometimes, rather than returning to Roseworthy in the evening, she would arrange for a student to do the evening chores. She would then go home and often experienced difficulty sleeping at night.
She said she started using the students to do her afternoon tasks from about mid-January 1995 onwards, and after that time it was probably about two to three times a week that she got the students to do her jobs in the afternoon. She was able to get through the work that was required of her because she put a lot of work onto the students. The track work however she had to do because of insurance hassles.
Ms Lloyd gave evidence that while she was at the College she forced herself to get through the work, but when she went home she was ‘very stressed out and the headaches would be excruciating and (she) just simply would have to go straight to bed’. She said she was able to overcome her difficulties for the time that she actually worked at Roseworthy but there came a point when she couldn’t overcome them anymore. Those difficulties included feelings of anxiety and fear that she experienced when she was around the horses. By then her anxiety and fear had become apparent to her. Furthermore she wasn’t sleeping, she was getting very tired and she ‘was so exhausted most of the time’. She also was getting headaches. She agreed that the life of someone involved in horses, whether it be as a jockey or stable hand or even what she was doing at Roseworthy, was fairly gruelling in that it demanded she be there at least six or seven days a week from very early in the morning to very late at night. She considered that was physically impossible for her. By early 1995 she had got to the stage of not wanting to do the work at Roseworthy because it was too physically exhausting.
Whilst working at Roseworthy she attended the races a few times as doing so was part of her job. She did not enjoy attending the races and she became sick when she did so. She felt really out of place and couldn’t promote the College the way her employer wanted her to because she went ‘into a bit of a daze when she was at the races’.
Although Ms Lloyd was suffering considerably and believed she was not physically capable of continuing her work at Roseworthy, she did not resign at first. In her evidence she explained that there was a lot of publicity when she obtained the position, and she feared that if her resignation was accompanied by similar publicity it might be the end of the enterprise for Roseworthy College. She considered that resigning after only a month or two could cause the trainers to question the security of their horses in a place where the person in charge of pre-training couldn’t handle the job, which would jeopardise the project.
Another reason for not resigning was because she felt that she had security with the job. She had been told that if the enterprise failed the College would find her employment in another section. That offered her security for the future, not only as to her wages but superannuation also.
She said she finished working at Roseworthy at the end of March 1995. Her immediate superior, Ken Carthew, asked her how things were going and she replied that she didn’t think she was really handling it that well. She told Mr Carthew that she was too scared to resign for the reasons already referred to. Mr Carthew responded - ‘if this enterprise holds up, it will hold up on its own worth. It won’t be your fault if it doesn’t’. With that she put in her resignation a couple of days later and she was not required to work out any notice.
Her explanation for resigning was that at the end of the day, even though she would get through the day with the students’ help, she would be really tense and nervous. It took her a long time to realise that it was the horses that were making her feel that way. In addition she thought if she stayed she’d have a complete break down because she couldn’t handle what she was doing in the job. She tried most of the duties that were assigned to her at Roseworthy but she couldn’t say that she did them successfully and she didn’t think she was earning her wage. Towards the end she was able to roster the students to do most of her work. She resigned for her peace of mind, despite having no other employment to go to.

After she left Roseworthy she looked in the papers for employment. She found none but applied for a job selling goods door‑to‑door for charities. She found she could not handle a full day of that work because of fatigue. She was on commission but ended up only earning enough to pay for her lunch and her train fare. She then went into Centrelink and applied to go on to Jobsearch. She received a letter from Centrelink telling her that an appointment had been made for her to see the Commonwealth Doctor. The Commonwealth Doctor recommended that she go on a Disability Support Pension, which she was granted in June 1995. She has not looked for employment since but has done volunteer and charitable work for a variety of organisations including Meals on Wheels, some nursing homes and Community Aid Abroad. She has done courses at the WEA, a cosmetic care course, a women’s education course at TAFE and a florist course.
She does not consider that she could now work with horses. She cannot bring herself to touch them. Being in their presence causes her heart palpitations, shortness of breath and sometimes even shaking. She has attended a course about how to handle panic and anxiety attacks and also, at the WEA, she did a course on meditation and relaxation. Whilst those courses have helped her, in particular to overcome her very shallow breathing and choking, they have not helped her to work in the vicinity of horses.
She consulted psychiatrist Professor McFarlane in November 1995 regarding what had been diagnosed as post traumatic stress disorder.
She is very clumsy and drops things. Occasionally her left leg will drag and she has fallen a few times because of that. She experiences problems with her balance and she cannot run.
She has difficulty concentrating and can only read two or three pages of a book at a time. Many times she misses the first word in a sentence or the first letter in a word. A lot of reading can cause her violent headaches. Sometimes she misunderstands what she has read and needs someone to explain things to her. She still experiences problems with sleeping and has problems with her memory. She cannot be selective in what she remembers.
When doing her voluntary work she finds she tires easily and needs frequent breaks. When she gets ‘completely exhausted’ her mind goes blank. At Community Aid Abroad she would work for about four hours but would have breaks for anything up to ten or fifteen minutes. That would happen probably every hour at least. She worked for a month at this type of work in April 1999 and for about the same time around October 1999. Community Aid Abroad only have volunteers for those two periods each year.
At the time of the trial she had no plans to resume paid employment in the future. She could not work in full time employment because she couldn’t handle a full day’s work.
Evidence of Mr Kenneth Carthew
Mr Carthew had been involved with harness racing since 1963 as a trainer and driver, and had been involved in the thoroughbred industry as a track rider and licensed trainer from 1988. He started with Roseworthy College in 1988 as a lecturer and course adviser and he remained at the College (later to be the Roseworthy Campus of the University of Adelaide) until his retirement.
I accept Mr Carthew as an honest witness and I am satisfied that his evidence is a reliable basis upon which I can make findings of fact.
Roseworthy campus had a capacity for 55 horses. It had 25 students doing a two year diploma and therefore would have fifty students involved in the horse management course. The object was to produce trained persons for employment within the racing, equitation and harness racing industries. Mr Carthew was the most senior person at the Roseworthy campus responsible for that part of the Department of Animal Science which ran the Diploma in Horse Management.
In 1995 a decision was made to introduce a new program to establish a small enterprise involved in the pre-training of horses. The enterprise was called Unitrain Pty Ltd (‘Unitrain’) and the enterprise was to have one employee. That position was advertised and Ms Lloyd was one of the applicants.
Unitrain was established after a three year business plan found that there was a requirement within the industry for pre-training of thoroughbred race horses. It was established to supplement the teaching program. It had to be a self-funding enterprise because the department had insufficient funds to provide that facility within the teaching program.
The person to be appointed would be required to liaise with the racing industry and to encourage trainers and owners to send their horses to the Unitrain enterprise. He decided to appoint Ms Lloyd. He said that he was aware that she’d had a serious race fall and that she’d suffered serious injuries. Given the fact that she was so well respected and liked within the industry however, it was thought that if she had recovered and rehabilitated she would certainly be an asset to the training program. She was required to work with students, assisting them as much as possible using her knowledge and expertise in race riding and horse handling skills.
Mr Carthew stated that when he employed Ms Lloyd ‘we hoped that she had recovered fully’. He had spoken with her mother and one of her doctors who had said that it was hoped she would make a full recovery and would be able to cope with what was required for the Unitrain job.
He was very pleased to offer her the position. He regarded it as somewhat of a coup for Roseworthy and was delighted with the publicity. He believed that she was fit to ride horses at that time and on all the information he had he thought she was the best candidate. He wouldn’t have employed her if he thought she was incapable of doing everything the job required.
When she started at Roseworthy he considered that she may take some time to rehabilitate herself to get back to full strength in riding track work. Her ability to ride horses wasn’t initially tested because they were still concerned about her situation, but after a short time he asked her whether she would like to commence riding some of the horses. Mr Carthew noted that she was always very willing, motivated and dedicated to her work. He found however, that when she was introduced to doing slow work on horses she seemed extremely nervous. On several occasions when she went out onto the race track she had to get off the horse and walk it back to the stables. He also noticed that she couldn’t mount a horse in the normal way. Instead she had to climb up the rails of the stall to get onto a horse. He encouraged her to ride more frequently as time progressed but found that she was having difficulty controlling horses, particularly when they worked in pairs with other students. She appeared to be having difficulties with her mental approach to riding and also with her physical state - ‘she just wasn’t strong enough to ride these horses in pairs’.
Mr Carthew observed that students were more than helpful with Ms Lloyd’s day to day chores because they were aware of her situation.
He said that he was aware of her injuries and after he saw her actually handling the horses in the first few days he realised she hadn’t progressed as far in her rehabilitation as he had expected or hoped. He said that he didn’t take any action such as notifying an occupational health and safety representative because the students were there to assist her and to help with her duties. Also, because the appointment was made on her profile and recommendations from other people, he thought he should hold off on any action hoping that she would eventually be able to handle the requirements of the position in a way which was expected. Mr Carthew stated that his initial observations caused him some concern about her safety but he didn’t report those concerns to anyone because he thought she would eventually be able to ride the horses without any problems. As part of that she was allowed to ride the more easily controlled horses in the beginning so as to make it as safe as possible under the circumstances. Eventually she rode all the Unitrain horses from time to time but he could not say that she rode them every day. There were three students involved with her all of the time and they did quite a lot of the track work. He said that Ms Lloyd would be wrong if she maintained that students didn’t ride the Unitrain horses. He had sometimes told students not to allow her to ride certain horses. One of the safety measures that he took was to supply her with a mobile phone just in case she was on her own and required assistance.
He also denied that Ms Lloyd was responsible for deciding how much work a particular horse would get (as she had suggested). Devising the programs for the horses was his responsibility.
He agreed that during the time she was at Roseworthy the work got done either by her or in conjunction with the students, but she worked much slower than was normal industry practice. He said he made allowances for her situation.
She was required to work 40 hours per week with the assistance of the students, but those times were not enforced. He virtually allowed her to do her own thing. He said that if she accomplished her feeding and exercising the horses and cleaning the yards in two hours in the morning, she would have a break during the day and come back of an evening to feed the horses. Alternatively the students would feed the horses in the evening.
He said that she didn’t appear completely capable of performing the duties of the position. She seemed to be hesitant around the horses, stilted in her work and slow. She tired very quickly and appeared to be exhausted when she completed her duties. She seemed extremely nervous most of the time in the vicinity of horses and wasn’t handling them in the way she should have been. For a time Mr Carthew was very tolerant and patient with these aspects of her performance because he knew she was going through a process of rehabilitation.
Mr Carthew stated that she did not involve herself in that aspect of the job which involved selling the program to the racing industry. She seemed to find it very difficult to go to the racetrack and mix with the people she had known. On one occasion she was quite confident about going to the races, but when she got there she didn’t seem to cope with the situation mentally. - ‘She just seemed to have lost the plot’.
He said that in the latter stages of her employment it seemed that she was spending less and less time at the campus. He commented that ‘she wasn’t spending anywhere near the required amount of hours on the job as she was in the early stages of the program’.
He believed that her mental state had got progressively worse over the time that she was there. She seemed to be on edge and nervous in most situations.
He eventually came to the conclusion that she wasn’t coping with the situation or performing as the University would have wished and he discussed that matter with the head of the department. It was Mr Carthew’s view that she was having significant difficulties coping mentally and physically with the job. The situation was discussed and it was resolved to talk with her about the problem. It was decided that she would be asked whether she could improve her performance, otherwise her employment might need to be terminated. He said that she attended a meeting and ‘we explained that things weren’t working out the way that we had expected’. He said that one of the concerns that was raised with her was that there should be less sharing of the workload with the students because the students were being asked to do more than their share.
No real conclusion was reached at the meeting and it was decided that the matter would be discussed again at a later stage. In the next day or two she came to him and asked if she could cease her employment at Roseworthy. She said that she was not coping and asked to finish as soon as possible.
Had she not resigned, he said that he would not have permitted her employment to continue in the same way that it had been going.
The medical evidence
When Ms Lloyd fell off her horse on 14 March 1994 she lost consciousness and was taken to the Royal Adelaide Hospital where a CT scan showed a small subdural haematoma, fractured right zygoma, a small contusion on the right frontal lobe and generalised cerebral oedema. She was admitted to the intensive care unit until 25 March 1994 when she was responding to some commands and had a left hemiparesis. She was transferred to the Julia Farr Centre on 21 April 1994 and was discharged on 2 June 1994 when she was totally independent in her activities of daily living as well as her mobility. However she was left with mild cognitive impairment together with mild high level balance impairment.
She was under the care of neurosurgeon Professor Nigel Jones. He noted the tests at the Julia Farr Centre indicated that she had difficulty in keeping track of and dealing with more than one piece of information or task simultaneously. It was felt that this would have implications for her work as a jockey as it would require quick and accurate consideration of many simultaneous factors for sound judgment and safe action.
Professor Jones saw her on 6 June 1994. She was still having problems with her short term memory and was attending a rehabilitation centre.
He saw her again on 5 September 1994 when she was disappointed because she was having difficulties getting insurance to ride. She asked him to write to the South Australian Jockey Club to say that she was fit to ride, which he did.
He had several discussions with her between September 1994 and October 1995. She was initially very proud to have returned to riding but Professor Jones reported that she found it extremely difficult to cope and eventually gave up her job at Roseworthy College. He thought that must have taken considerable courage in view of the media interest in her return to riding.
Professor Jones saw her on 11 September 1995 after she made that decision. She said her headaches were much better but she was still having some problems with her memory. She had difficulty concentrating for more than half an hour.
In a report dated 19 October 1995 Professor Jones said she had suffered a severe head injury in the accident and had worked extremely hard to get to the state she was in at that time. Her initial improvement had been accelerated by her intense desire to return to her previous activities and he thought that was something she needed to prove to others, but after she had taken that step she realised that she was not able to cope. He felt that from a physical point of view, at the time she started the Roseworthy job she was fit to ride. In October 1995 he still thought that to be the case. Her problems were largely neuropsychological and were manifested in the areas of concentration, memory and information processing. She also had an element of post traumatic stress. He recommended an assessment by a neuro-psychologist and also referred her to Professor McFarlane, a psychiatrist with expertise in post traumatic stress disorder.
He expressed the opinion in October 1995 that her psychological and higher function problems were likely to remain static in the future, which disabilities ‘resulted in total permanent disablement to prevent her from continuing to ride as a professional jockey or other occupation involving horse riding’.
Professor Jones saw Ms Lloyd on 24 February 1999 for the purposes of a further report. She reported that her main problems were tiredness and lack of concentration. She said she would fall asleep during movies and was unable to manage even two hours a week doing volunteer work. She had headaches and neck stiffness which made it difficult to sit still. She described a major problem with her short term memory which was patchy and non-selective. She continued to have a big problem with concentration. She was unable to focus on things and needed to have breaks at regular and short intervals because she was unable to maintain her concentration. She frequently tripped with her left leg when climbing stairs. She was unable to hop on her legs or even to stand on one leg for a prolonged period and had difficulty running. She was unable to go near a horse without having a panic attack.
Professor Jones expressed his belief that the injuries suffered in the accident impaired her employment opportunities. He had little doubt that she was unable to ride or work with horses and any other employment would be severely limited. The main physical bars to employment would be her mild clumsiness of the left hand and some incoordination of her legs. As stated earlier however, ‘her major problems are neuropsychological in the fields of memory and concentration’. He felt that her restrictions arose directly and solely as a result of the injuries sustained in the riding accident and that they will continue permanently. No treatment was available. He said that with her restrictions and limitations any work that she could do would require a very sympathetic employer and considerable supervision. Even some attempts to work for charities had failed despite being among the most sympathetic of employers, and despite her genuine commitment to that and other voluntary work.
In his evidence at trial Professor Jones endorsed the opinions I have referred to as being expressed in his written reports. He said that Ms Lloyd’s main problems were in her higher functions in that she had difficulty concentrating, had poor memory and had difficulty with insight and judgment. She also had some other neuropsychological problems including a fear of going back on horses which, he said, would prevent her from working with them.
He thought that her condition between 1995 and 1999 had remained fairly stable. Any changes were probably related to her realisation of her limitations and other problems that she was having. Her problems with her left leg when climbing stairs, her inability to stand on one leg for a long time and her difficulty running was related to her injury to the brain; more particularly to that part of the brain affecting the coordination and the power of the left side of the body. This also resulted in mild incoordination of her left arm and her inability to hop on either leg. He thought these problems would have existed continuously from the time of the injury in March 1994 and were permanent. Her difficulties in focusing, concentrating and remembering things were consequences of her injuries in March 1994 and were likely to be permanent also.
He thought that her mild incoordination would be a problem in occupations requiring fine motor skills.
In cross-examination Professor Jones accepted that his opinion had become progressively more pessimistic over the years. He said the sort of symptoms that she complained of are not anything that is immediately visible from the exterior. One needs to get more information from her to find out how she is coping with things and as he got to know her better over the years, he’s appreciated that the disability is greater than he first thought. He thought that there was ‘virtually zero chance of any improvement in her condition at this stage’. He acknowledged the possibility that the mental condition which affected her working with horses might improve but that was really a matter for other experts.
He said that the sort of higher function deficit that she had only becomes apparent when one needs to use that function. That was probably one of the reasons why his opinion had become more pessimistic over time - ‘As she had tried to do more and more it’s become more obvious that the functions have decreased’.
Dr Pamnany assessed Ms Lloyd in July 1995. That doctor was a medical adviser to the Australian Government Health Service. The assessment was for the purpose of a disability support pension. Dr Pamnany described her failed attempt to return to work at Roseworthy College arose because her residual disabilities had not been adequately recognised by others. He expressed the opinion that ‘she has labile emotionality, poor muscular coordination which is generalised (body, including both upper and lower limbs), an impaired short-term memory problem, which was very embarrassing in an occupation context, and easy fatigueability.’ His assessment on 26 July 1995 was that she was unfit for all work in the foreseeable future and was not then suitable for vocational rehabilitation.

On 20 March 1996 Ms Glenys Forrester peformed a neuropsychological assessment on Ms Lloyd. The results of the assessment showed her to have ‘a flattened learning curve for auditory-verbal material and significant memory deficits for both verbally and visually presented information. Her performance on timed tests was below that which could be expected on the basis of her age and intelligence. Her speed of information processing and responding were below normal and below those that would be necessary for her to process information, make fast decisions and respond quickly in a racing situation. Her reports of difficulty in sustaining attention were supported by formal test results.’
Ms Forrester expressed the opinion in March 1996 that these deficits were consistent with the significant brain injury sustained by Ms Lloyd in March 1994 and improvement in her neuropsychological status was extremely unlikely. Her memory deficits were likely to be permanent as was her depressed speed of responding. She expressed the opinion that Ms Lloyd was not fit for an occupation involving horse riding and, because of her stress when with horses, she was not fit for an occupation which involved working with horses. Her significant retrieval deficits would preclude her from occupations which involve substantial amounts of retraining and dependence on retrieving information from memory. She thought she was capable of working in occupations where the routine does not require fast processing, or where the information needed for her to perform her duties is available and does not place great demands on her memory or on her diminished capacity to sustain concentration. She thought these were significant restrictions for a young woman of Ms Lloyd’s pre-morbid abilities.
Ms Forrester thought there was a fairly fine line between a diagnosis of post traumatic stress disorder and phobic reaction.
She said that although she has not seen Ms Lloyd since her initial assessment she would be extremely surprised if anything had changed. Ms Forrester stated - ‘she would have great difficulty, I believe, in almost all forms of employment.’
In cross-examination Ms Forrester was asked whether it was her opinion that from the time Ms Lloyd left her position at Roseworthy until she was assessed by her in March 1996 she was unfit to work with horses. She replied - ‘I believe she was probably unfit to work with horses all the way along, from the time of the injury.’ She believed that the reason Ms Lloyd attempted to do so was because it had been a lifelong love and interest for her, but emotionally she was not able to cope with it.

100 Ms Forrester said that even if Ms Lloyd was not on the race track, riding a horse requires making decisions and responding to obstacles and perhaps other riders. Her assessment was that there are a number of cognitive issues that would make that difficult, if not dangerous.

101 She said that she would be concerned if Ms Lloyd returned to any sort of work handling horses, even if she was not riding them, because at the time of the assessment she was too anxious about the whole issue of horses to be able to do that. Also, if she experienced stress, her cognitive deficits were likely to be exacerbated by the emotional aspect of what she was suffering.

102 Ms Forrester said that she would not have expected any deterioration in Ms Lloyd’s cognitive ability between April 1995 and March 1996.

103 She said that she wouldn’t feel comfortable in trying to desensitise Ms Lloyd in her circumstances. It can be extremely traumatic and it exposes the person to the very thing they fear. It can depend on the degree of trauma and how entrenched the phobic fear and avoidance is as to how long it’s going to take to desensitise, and it is pure speculation in any one particular case whether or not the treatment is going to succeed. Ms Lloyd’s fear was not unrealistic as she in fact was caused significant harm in the fall during the horse race. Desensitisation is used less frequently in a case such as Ms Lloyd’s. In the absence of a motivational desire to be desensitised it would be pointless. Ms Forrester expressed the view that Ms Lloyd’s other deficits would mean that the usefulness of desensitisation in terms of future employment would be extremely limited.

104 Ms Lloyd was seen by Dr Brian Brophy who is a neurosurgeon, on 16 July 1996. He expressed the opinion that she sustained a major closed head injury in the accident. She had made a good recovery although her level of functioning was consistent with a significant neuropsychological impairment, as noted by Ms Forrester. She has difficulty with planning and organisation and has a memory disorder. Her anxiety in the face of horses is in part psychological, but is also related to physical incapacity. She has a subtle motor disorder which he felt was likely to be significant in activities such as riding a horse. He thought that she was physically and mentally unable to ride a horse at the time he saw her. He felt that her neuropsychological difficulties would also detract from her ability to gain employment of any sort, and it was likely that she would require a sympathetic employer. He felt that she would only ever be likely to obtain relatively simple employment. He believed her difficulties were both physical and psychological, but physical injury to her brain was largely at the root of most of her problems. He thought that her incapacity was a direct result of the head injury she sustained while riding in the race on 14 March 1994.

105 In his evidence he said her physical disabilities were significant in relation to horse riding. He said that her subtle motor disorder would create problems for her riding track work causing, amongst other things, problems with balance and coordination. He said he felt that she had a significant disability that had a physical basis as distinct from a psychological basis. He thought that it would be highly inadvisable for her to ride thoroughbred horses, even at a trot or a canter.

106 Ms Lloyd also underwent a neuropsychological assessment by Mr Anthony Walsh. He initially assessed her on 30 July 1996 and 1 August 1996. He concluded that, despite making a good recovery and being able to obtain employment exercising race horses, she was unable to maintain her performance. He stated that a combination of physical, cognitive/intellectual and emotional issues combined to convince her to resign from the job where she was employed to exercise horses. His formal neurological assessment strongly supported the view that she continued to suffer from significant disability associated with her closed head injury. This included difficulty with mental manipulation of information, recent memory for both verbal and visuo-spatial information, and planning and organisation of information. Although she reported significant levels of depressive thoughts and feelings, it was Mr Walsh’s opinion that the pattern of performance on the neuropsychological tests supported an organic, rather than an emotional hypothesis as the cause of the deficits. Those deficits were of a moderate severity and would have a significant impact on her ability to return to open employment. He expressed the view that at the time he assessed her she would be employable only with the support of an understanding employer. He did not believe she was fit for employment in the open market.

107 Mr Walsh reassessed Ms Lloyd in March 1999 when the results of some of the tests were almost identical to the performances obtained in his 1996 assessment. He reported that they reflected ongoing significant problems with verbal and visuo-spatial recent memory, and difficulties with planning and organisation.

108 He said that his reassessment found deficits which were similar to those found by him in 1996, and they represent ongoing significant brain dysfunction consistent with her injury. They preclude her from open employment and she is really only suitable for ‘sheltered employment ... where the employment is really for social reasons’. His opinion was that those deficits have been continuous since the time of the injury and are permanent. There was no treatment which was likely to significantly alter that fact.

109 Mr Walsh gave evidence and confirmed his view that Ms Lloyd is totally disabled for any form of open employment, and that that condition is permanent.

110 He said that based on her brain dysfunction her ability to make decisions had been dramatically reduced by the injury and that would quite significantly impair her ability to do any work that required intellectual capacity. The ability of someone to motivate oneself to do something is not just an emotional function but also can be quite significantly impaired by the type of injury that one has suffered. He said that he had no expertise in the riding of horses so he needed to keep his comments more general. He said that with any activity in which she was to be involved she would have very significant difficulty. Her ability to plan and organise her thinking, to recall information accurately or at all, and her ability to mentally manipulate information is going to be a very great handicap to any complex activity. He thought that the added problem she suffered at Roseworthy was that she began to develop an increased insight into her problems, and that caused a psychological reaction. The source of the problem however, was the disability suffered to her cognitive intellectual abilities because of her brain injury.

111 Her brain injury ‘reduces her intellectual capacity from top gear in a car into perhaps first or second gear, so the amount of work she needs to do intellectually in order to be able to do even straight forward things is greatly increased. So even the most simple things require much more energy, and some things are completely beyond her ability, such as being able to recall information mentally, manipulate information and so forth’.

112 Mr Walsh commented on what he thought might have happened at Roseworthy. He said: ‘My view is that it’s very likely that Mrs Hall was doing that with the encouragement of the media, and her doctors, who all wanted her to make a good recovery, and she was able to maintain that for a short period of time, but, in essence she was working above her capacity. She was stretched beyond the limit, and when she realised that, because she made errors, her psychological condition ... became a factor which was negative rather than a ... factor which was positive. She essentially went from being a person who was working beyond her safe limits, because of positive thinking, realised that she was having great difficulty, and then had a psychological reaction to that.’

113 He said that if she had a sympathetic employer she could be occupied in a way which was similar to sheltered employment, where there was a very low level of productive work and the motivation for engaging in the work was social reasons. He agreed that she could be occupied in some of the areas of work that she was performing at Roseworthy, but he drew the line between being occupied and being employed. That is the difference between the concepts of sheltered work and open employment. His assessment was that her employment during that period of time was beyond her ability to sustain. She probably didn’t have the capacity to do the work at Roseworthy but she did it anyway. This was ‘because of low levels of insight, and because of her familiarity with the work beforehand which gave her an opportunity to do something in an area that she was comfortable, and probably quite supported because the people around her knew her, knew her situation, and everyone was hoping she would make a much better recovery. This is not uncommon with people with brain injury that frequently ... they, the family, and even the doctors will be very confident of a terrific recovery, but, when you actually find out what the person can actually do, it’s usually a lot less than they are able to do in short bursts in public.’

114 He agreed that it was possible that she might overcome her anxieties to the extent that she no longer felt anxious when she went near horses. There was certain treatment that could improve that, but such treatment is not always successful. To treat a person ‘who has actually suffered a significant physical and very significant brain injury and whose ability has been dramatically reduced before there was even any suggestion of a psychological problem, it’s likely that the treatment may expose such a person to her deficits from brain injury in a way that some people could call harsh or cruel’.

115 Finally, there was evidence from Dr George Mendelson, a consultant psychiatrist. He examined Ms Lloyd on 29 May 1998.

116 Dr Mendelson expressed the opinion that there was no basis whatsoever for the view that she had developed a post traumatic stress disorder as a result of the race fall in March 1994. Rather, he was of the opinion that her symptoms when working with horses represented ‘an understandable phobic reaction based on her having been told that she was thrown by a racehorse while racing.’ He said that when he saw her she did ‘experience the manifestations of cognitive impairment resulting from her head injury’. In his opinion the combined effects of her physical, cognitive and psychiatric symptoms render her permanently and totally disabled with respect to returning to her former employment as a race jockey. He thought that if she was motivated to resume working with horses in some other capacity, she would be able to do so even if that initially caused her some feelings of anxiousness. He stated he would anticipate that with appropriate therapeutic assistance those feelings of anxiousness could be minimised and would eventually resolve.

117 With respect to other possible employment, it was his view that if she were motivated to undertake work which was free of significant responsibility and time pressure, she would be able to do so provided she had a sympathetic employer and supportive work environment.

118 In his evidence at trial Dr Mendelson said that before treating someone so as to enable them to work with horses, the person would need to be motivated. Without motivation the treatment would probably be impossible. If motivated however, he thought that Ms Lloyd might be a suitable candidate for treatment to overcome her anxiety because she had not received or sought any psychiatric treatment. She had in fact worked with horses some months following the injury, without seeking treatment. He said he thought there was a high likelihood that she could be helped, such that she would eventually be able to tolerate being in the presence of horses without developing feelings of anxiety.

119 Dr Mendelson agreed in cross-examination that a phobia that had lasted for six months would be more difficult to treat than a phobia that had lasted for a few months.

120 He said that she does have cognitive difficulties, being problems with concentration and short-term memory, which he thought would impact on her ability to cope with some types of work. For that reason, she would need a position that was free of stress and significant responsibility, and preferably also a supportive employer who would be sympathetic towards her.

121 He explained what he meant by her being able to resume working with horses ‘in some other capacity’ if she was motivated to do so and if the treatment of her anxiety was successful. He said that he thought it would probably be unwise for her to ride horses in any capacity at all and so the work that he had in mind was feeding and grooming horses.

122 Dr Mendelson agreed that there was a low likelihood that she could obtain employment in the open market.

123 The evidence from Community Aid Abroad

124 Mr Trevor Brown from Community Aid Abroad gave evidence that Ms Lloyd was a volunteer for his organisation in April 1999. Twice a year that organisation had a mail order program and volunteers would come in twice a year to fill the mail orders. They would either be put on ‘picking’ or ‘packing’. The volunteers doing the former would select goods from the store as ordered. The volunteers doing the latter would pack those orders and send them out to customers.

125 Ms Lloyd was firstly put on picking but Mr Brown said that she was on a very short shift because she found it very tiring. She found it very hard to use the order form for picking although it was a very basic system. She was very slow in doing her work. Although she wanted to be as fast as everyone else, she couldn’t be. She was therefore put on to packing in the dispatch area. He said she couldn’t use the packing gun properly and he would know which were her packages. He said that she was instructed several times in the process but she would always go back to doing it the wrong way. Sometimes her work was redone by others. He noticed that she would tire very quickly.

126 He referred to volunteers of Community Aid Abroad having a diverse range of disabilities.

127 Ms Jill Llywelyn also gave evidence and she said that Ms Lloyd had difficulty with concentration in the picking area, where she was uncertain about the fairly basic and simple procedure. She required help often, she lacked confidence and she looked confused.

128 In the packing section she appeared to have problems with dexterity and she couldn’t handle the tape gun. She appeared to have co-ordination problems no matter how many times she was told what to do. She tried very very hard but her work had to be redone from time to time. She would very obviously become physically and mentally tired with the work. She appeared to have problems concentrating and she suffered headaches.

129 Findings

130 As a result of her fall at Morphettville Racecourse on 14 March 1994 Ms Lloyd suffered a severe closed head injury. Whilst she enjoyed initial improvement over the first few months after the accident, which improvement was accelerated by her intense desire to return to her previous activities, she suffered injuries to her brain which have left her with significant deficits. Those deficits include:

131 (a) difficulties with concentration for more than a relatively short period of time and suffering headaches after concentrating for a short time;

132 (b) a major problem with her short term memory which is patchy and non selective. These deficits apply to both verbally and visually presented information;

133 (c) difficulty with processing information, involving a depressed speed of processing and responding to information;

134 (d) significant retrieval deficits;

135 (e) difficulty with planning and organisation;

136 (f) difficulty in recalling information and manipulating information mentally;

137 (g) a motor disorder creating problems with balance and coordination;

138 (h) clumsiness of the left hand and some incoordination of her legs causing her to trip in certain circumstances;

139 (i) an inability to hop on either leg or even stand on one leg for a prolonged period;

140 (j) difficulty in running.

141 I make these findings on the evidence of all the doctors from whom I had evidence. It is consistent with the lay evidence of Ms Lloyd, Mr Carthew and the Community Aid Abroad witnesses.

142 I find that each of these deficits have been present in Ms Lloyd since the time of her fall and that none have improved since she was discharged from the Julia Farr Centre on 2 June 1994.

143 I find that there is no likelihood of any of these deficits improving in the future. She may be able to cope with some of them better from time to time depending upon what demands she makes of herself in her activities, but they will all be with her for the rest of her life. I find that they are the result of the damage suffered to her brain in the fall at the Morphettville Racecourse on 14 March 1994.

144 In addition to the deficits referred to above Ms Lloyd has also experienced anxiety and fear when in the vicinity of horses. She gradually became aware of that reaction during the period she was at Roseworthy. She correctly appreciated soon after her accident that she would never again be able to ride as a jockey. She was determined however to try and prove to herself, and possibly her doctors, that she could return in some way to the horse racing industry. As a result, she applied for the Roseworthy job. In theory at least, that job offered her the prospect of returning to the industry where she could use her training and experience with horses. I consider that Mr Walsh’s view is correct - that Ms Lloyd obtained and started the Roseworthy job with the encouragement of everyone who wanted her to make a good recovery. She was able to maintain the job for a short period of time but I find that from the time she started at Roseworthy she was working above her capacity. When she realised that, she suffered psychologically. She gradually gained insight into her limitations and, in particular, gained insight into the fact that working with horses caused her anxiety.

145 I find that Mr Carthew engaged Ms Lloyd because he believed that with a period of rehabilitation she would be capable of performing the duties of the new position. He was influenced significantly in his decision by his belief that she would bring with her an ability to promote the new project amongst trainers and owners of race horses, and hence contribute to its establishment and growth.

146 Mr Carthew soon realised that Ms Lloyd’s rehabilitation had not proceeded as far as he had expected and, whilst he was prepared to and did make allowances for her at first, by early 1995 he had decided that the situation could not continue.

147 I find that at least by the middle of January 1995 Ms Lloyd was transferring the responsibility for many of her duties to the students. This included having students do some of the track work for the horses in pre‑training as well as feeding the horses and cleaning the stables in the afternoons.

148 Ms Lloyd’s physical and neuropsychological deficits were such that she never coped with the Roseworthy job but she did not realise that she was not coping until about the middle of January 1995. She then realised that the job was beyond her physical capabilities and that the horses were affecting her adversely.

149 Unitrain expected her to promote the new pre‑training project amongst trainers and owners she knew, and that she was aware of that expectation. It was expected that she attend race meetings for at least that purpose but also to assist the students, and that she did not and could not do so without suffering considerably.

150 Ms Lloyd did not resign when she first realised that she could not cope with the job because she felt some responsibility to the College. She did so as soon as Mr Carthew indicated to her that it would not be her fault if the project failed.

151 I find that Ms Lloyd was unfit to work with horses from the time of her injury and that she only attempted to do so because it had been a life long love and interest for her. I accept Dr Brophy’s evidence that her anxiety in the face of horses is in part psychological but is also related to physical incapacity. The physical injury to her brain is largely at the root of most of her problems.

152 I was impressed with the witnesses from Community Aid Abroad and I find that the problems they observed with Ms Lloyd were the sort of problems that were observed by Mr Carthew during Ms Lloyd’s employment at Roseworthy. Mr Carthew’s evidence convinces me that Roseworthy College was, for at least a short period of time, a sympathetic employer of which all the doctors spoke as being necessary if Ms Lloyd was to do any useful work in the future.

153 I find that the job at Roseworthy was one which Ms Lloyd was never capable of performing. I am satisfied that had Mr Carthew known of her disabilities at the time he engaged her, he would never have done so. I am satisfied also that had Ms Lloyd not resigned when she did, Mr Carthew would have taken such action as was necessary to terminate her employment with Roseworthy.

154 Whilst I acknowledge the possibility that Ms Lloyd’s anxiety near horses might be successfully alleviated by certain treatments of which Dr Mendelson spoke, I am satisfied that no reasonable medical practitioner would have recommended any such treatment from January 1995, nor would they recommend it in the future. This is because her physical deficits were and are such as to make that a pointless and fruitless exercise, if not harsh and cruel.

155 I find that Ms Lloyd was unable properly to discharge the duties of the Roseworthy job as a consequence of her physical deficits which, when compounded by a realisation that she was suffering anxiety around horses, led her to resign before her employment was terminated. I find that since the fall in March 1994 she has only been able to engage in very limited activities for a sympathetic organisation, where those activities are more for social reasons than to earn a living. I find that that situation will endure indefinitely without hope of improvement.

156 Conclusions

157 The insurer will be liable to pay $80,000 to the Jockey Club if Ms Lloyd has suffered injury which has resulted, solely and directly and independently of any other cause, in an inability to engage in any occupation for which she is fitted by reason of education, training or experience, which has lasted for a period of at least twelve consecutive months and which will continue permanently.

158 The insurer accepted that Ms Lloyd’s medical disabilities resulted solely and directly from her fall in March 1994 and were independent of any other cause.

159 The insurer argued that the Roseworthy job was an occupation for which Ms Lloyd was fitted by reason of education, training or experience. The fact that all the duties of that job were performed demonstrated that she had the ability to engage in that occupation. The insurer also argued that she engaged in an occupation of riding track work with her mother between September 1994 and November 1994. It was argued that the evidence established that she had an ability to engage in an occupation of ‘stable hand’, where that occupation did not require the riding of horses.

160 The insurer relied on the ‘Capital Benefits’ clause of the policy which required that ‘any Event referred to in any Schedule of Capital Benefits in this Policy must occur within twenty-four (24) months of the date of Injury’.

161 The policy provided that an Event was an ‘Injury resulting ... in Permanent Total Disablement’. Accordingly it might be open to a construction that the Event was the injury and not the resulting Permanent Total Disablement, which had to occur within twenty-four months of the date of the injury. I am satisfied, however, that such a construction would make a nonsense of the Capital Benefits clause in the policy. I am prepared to construe the policy on the basis that what must have occurred within twenty-four months of Ms Lloyd’s injury was Permanent Total Disablement. That must have occurred by 13 March 1996.

162 That is, to succeed in this action the Jockey Club must establish that Ms Lloyd had an inability from engaging in any occupation for which she was fitted by reason of education, training and experience, which inability had lasted for a period of at least twelve consecutive months and which would continue permanently, and such inability must have occurred within two years of 14 March 1994.

163 The insurer argued that in that two year period there was no period of twelve consecutive months during which Ms Lloyd was not working. She started the Roseworthy job within twelve months of the fall and resigned at the end of March 1995, leaving about 11 ½ months before 13 March 1996.

164 This argument might have merit if I had found Ms Lloyd had an ability to engage in the Roseworthy job. In theory, as I have indicated in my findings, that job was one for which she was fitted by reason of her training and experience. My findings are however, that Ms Lloyd was incapable of performing the Roseworthy job during the time that she was there, or at least this was the case after mid-January 1995.

165 It was argued further on behalf of the insurer that the evidence available before 13 March 1996 must, alone, be able to establish Ms Lloyd’s permanent inability to engage in any occupation for which she is fitted. I reject that submission. Whilst I am satisfied under the policy that the Jockey Club must establish that a permanent inability to engage in any occupation for which she is fitted had occurred within twenty-four months of her fall, I consider that it is open to take account of all the evidence before me to determine that. That includes medical evidence and opinions which have been formed subsequent to 13 March 1996 (cf Giles & Giles v The National Mutual Life Association of A/asia Ltd (1986) 4 ANZ Insurance Cases 60-751 at page 74,529). Authorities to the contrary have concerned cases where the forming of an opinion by an insurer or a trustee about an insured’s permanent inability is in question. That is not the situation here.

166 I consider that here I must determine as a question of fact, on all the evidence, whether Ms Lloyd had an inability from engaging in any occupation for which she was fitted which lasted for a period of at least twelve months and which would continue permanently, and whether such an inability occurred within the period between her fall and two years thereafter. In determining that issue, having regard to a number of authorities is of limited utility.

167 The definition of Permanent Total Disablement uses a number of terms. I consider the proper construction of the word ‘occupation’ in the definition is a trade or a calling by which Ms Lloyd could gain a livelihood (see Luckin v Hamlyn (1869) 21 LTR 366). The proper construction of the word ‘fitted’ is an occupation for which Ms Lloyd is qualified or competent by reason of her eduction, training and experience. The proper construction of the word ‘permanently’ is lasting indefinitely without change or beyond hope of improvement. I agree with the submission on behalf of the insurer that there is really no distinction between the definition of ‘permanent’ in the policy and the dictionary definition of that word. There is certainly no difference in this case on the basis of my findings.

168 On the facts as I have found them, I conclude that Ms Lloyd has been unable to engage in any occupation for which she is fitted by reason of her education, training or experience since the date of her fall on 14 March 1994. Such occupations are riding as a race jockey, working as a stable hand, working as a laboratory assistant, and the job she had at Roseworthy. My findings are such that by reason of her injuries she was unable to engage in any of those occupations since the date of her fall. Further, my findings are such that her inability to engage in any occupation for which she is fitted will continue permanently. That situation occurred within twenty-four months of 14 March 1994.

169 Accordingly, the insurer is bound under the policy to pay the Jockey Club a Capital Benefit of $80,000.

[2000] SADC 41

20 April 2000