Sayseng v Kellogg Superannuation Pty Ltd

[2007] NSWSC 583

CITATION:	Diosdado Sayseng v Kellogg Superannuation Pty Ltd & Anor [2007] NSWSC 583
HEARING DATE(S):	20.11.06, 21.11.06, 22.11.06, 23.11.06, 30.11.06, 15.12.06, 27.02.07, 02.04.07, 03.05.07 (final written submissions 22.05.07)
JUDGMENT DATE :	8 June 2007
JUDGMENT OF:	Nicholas J
DECISION:	para 95
CATCHWORDS:	INSURANCE - superannuation - claim for benefit - whether condition of total and permanent disablement established - whether plaintiff entitled to relief
CASES CITED:	Dumitrov v SC Johnson & Son Superannuation Pty Ltd [2006] NSWSC 1372 Hannover Life Re of Australasia Limited v Sayseng [2005] NSWCA 214 Ivkovic v Australian Casualty and Life Ltd (1994) 10 SR (WA) 325 McCann v Switzerland Insurance Australia Ltd & Ors (2000) 203 CLR 579 Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Project Blue Sky Inc. & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 Wilkie v Gordian Runoff Ltd & Anor (2005) 221 CLR 522
PARTIES:	Diosdado Sayseng - plaintiff Kellogg Superannuation Pty Ltd – first plaintiff Hannover Life Re of Australasia Ltd – second defendant
FILE NUMBER(S):	SC 5048/02
COUNSEL:	B W Rayment QC/G B Beauchamp - plaintiff Submitting appearance – first defendant D Davies SC – second defendant
SOLICITORS:	Firths the Compensation Lawyers - plaintiff Minter Ellison – first defendant Deacons – second defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas J

8 June 2007

5048/02 Diosdado Sayseng v Kellogg Superannuation Pty Ltd & Anor

JUDGMENT

1 His Honour: The plaintiff, as a member of the Kellogg Retirement Fund (the fund) of which Kellogg Superannuation Pty Ltd, the first defendant, is the trustee (the trustee), sought the payment of benefits from the fund on the basis of his total and permanent disablement resulting from an injury to his back. The trustee held a policy of insurance with Hannover Life Re of Australasia Ltd, the second defendant, as the insurer (the insurer) under Group Life Contract No. VGL 8034 (the policy) under which the fund was insured for total and permanent disablement benefits payable to its members.

2 On 13 November 2003 in these proceedings (Sayseng v Kellogg Superannuation [2003] NSWSC 945) Bryson, J declared that the purported determination by the insurer in its letter of 27 April 2000 to William M Mercer Pty Ltd of the question whether the plaintiff was in the condition of total and permanent disablement within the meaning of the policy was void and without effect. He ordered that it be determined as a separate question in these proceedings whether the plaintiff was at the time or times relevant to his claim against the fund in the condition of total and permanent disablement within the meaning of the policy.

3 On 23 June 2005 the insurer’s appeal from the declaration and order was dismissed (Hannover Life Re of Australasia Limited v Sayseng [2005] NSWCA 214). Accordingly, the present proceedings are for the determination of the separate question in terms of the order made by Bryson, J.

4 The fund was created by a trust deed dated 1 October 1976. Under a power of amendment a further deed dated 29 January 1998 between Kellogg (Aust) Pty Ltd (Kellogg) and the trustee substituted a consolidated trust deed and rules for the earlier provisions. The plaintiff’s entitlement to payment from the fund was governed by rule 10 of the membership rules in schedule 1 to the trust deed which provided:

“10 TOTAL & PERMANENT DISABLEMENT
(1) Where, in the opinion of the Trustee, a Member becomes totally and permanently disabled while in service prior to the Normal Retirement Date and where the Trustee has effected a policy of insurance to secure part or all of the benefits payable in accordance with this Rule 10 and the Member becomes totally and permanently disabled within the meaning of the definition of such disablement in that policy, a benefit of the amount specified in sub-rule (3) of this Rule shall be payable in accordance with sub-rule (4) of this Rule.”

5 Relevantly, the policy includes the following provisions:

“Conditional on the payment of Premium, we hereby agree to extend cover and to pay benefits with respect to Insured Persons on the basis as set out in and subject otherwise to the terms and conditions of this Contract.
DEFINITIONS
For the purpose of this Contract the following important definitions apply:
AGREED BENEFITS are those benefits we have agreed to pay with respect to an Insured Person as shown in the Schedule.
…
INSURED PERSON is such person or persons whom we have agreed to insure under this Contract according to the Eligibility provisions shown in the Schedule.
…
TOTAL AND PERMANENT DISABLEMENT means:
(a) suffering the loss of two limbs or the sight of both eyes or the loss of one limb and the sight of one eye (where limb means the whole hand or the whole foot), or
(b) having been absent from work through injury or illness for an initial period of six (6) consecutive months and in our opinion being incapacitated to such an extent as to render the Insured Person unable ever to engage in or work for reward in any occupation or work which he or she is reasonably capable of performing by reason of education, training or experience.
…
EXTENT OF COVER
If an Insured Person dies or suffers Total and Permanent Disablement during any period for which Premium has been paid for that Insured Person, we shall pay the Agreed Benefits.
Where an Automatic Acceptance Level is shown in the Schedule:
1. Cover shall be granted to any person who is eligible to become an Insured Person up to the Automatic Acceptance Level, cover or any other person may only be granted subject to our usual acceptance requirements;
2. Where the level of cover for a person who is eligible to become an Insured Person or for an Insured Person is sought in excess of the Automatic Acceptance Level, we will notify you of the information we require to underwrite the excess cover. Until we notify you of our acceptance terms for the excess cover or as to whether we are prepared to accept or reject the excess cover, we shall extend Death and Total and Permanent Disablement (if applicable) by Accident cover for the excess cover or $500,000 whichever is the lesser for a period of one hundred and eighty (180) days from the date the person first became eligible to become an Insured Person or from the date the additional cover is sought for the Insured Person (as the case may be), provided however that the additional cover is within the level of Agreed Benefits shown in the Schedule.
Where no Automatic Acceptance Level is shown in the Schedule, we will notify you of the information we require to underwrite the cover sought with respect to any person who is eligible to become an Insured Person or with respect to any additional cover sought with respect to an Insured Person. Until we notify you of our acceptance terms for the cover or additional cover (as the case may be) or as to whether we are prepared to accept or reject the cover or additional cover, we shall extend Death and Total and Permanent Disablement (if applicable) by Accident cover for the amount of cover sought or $500,000 whichever is the lesser for a period of one hundred & eight (180) days from the date the person first became eligible to become an Insured Person or from the date the additional cover is sought for the Insured Person (as the case may be), provided however that the cover or additional cover is within the level of Agreed Benefits shown in the Schedule.
…
SCHEDULE

…

Automatic Acceptance Level:	$800,000 until the Annual Review Date and thereafter such amount as notified by us to you.
Eligibility to Become An Insured Person:	A person shall be eligible to become an Insured Person on the basis shown in the Application or on such other basis as may from time to time be agreed between you and us.
Normal Retirement Age:	On attainment of age 65.
Agreed Benefits:	The level of cover payable on Death or Total and Permanent Disablement of an Insured Person shall be such amount as may from time to time be agreed between you and us.”

Preliminary

6 The account in these reasons of the plaintiff’s background, employment experience prior to and whilst working for Kellogg, and of his condition and circumstances resulting from his back injury in June 1996 has been taken mainly from his evidence. Mindful of the insurer’s exhortation to evaluate this evidence with caution, I accept it. The plaintiff’s evidence was supported by the uncontradicted evidence of his wife Teresita, and of his daughter, Michelle, which I also accept. The plaintiff’s wife described him as hard working, energetic, outgoing, and free of pain before the injury. Her evidence referred to the development since 1996 of his condition and disability in terms which are entirely consistent with his account. His daughter, who had worked as a registered nurse for about five years, gave similar evidence of her observations of worsening back pain from 1997 to the present time, and of the development of limits to the plaintiff’s capacity to lift, bend, walk, drive, and to carry out ordinary household tasks.

7 My finding that the plaintiff’s evidence was generally reliable is supported by the reports of most of the doctors, including Drs Mitchell, Giblin, Bornstein and Bookallil whose reports noted that his symptoms were consistent with the radiology. Dr Tablante, the plaintiff’s general practitioner since September 1997, said that his consistent complaints of chronic low back pain are genuine. Furthermore, the insurer disavowed the submission that the plaintiff was untruthful when telling doctors of his condition (T p 291), and it was not suggested that he was a malingerer.

8 Also, on behalf of the insurer, objection as to relevance was taken to evidence of the plaintiff’s condition after 21 October 1998, being the date 30 days after the plaintiff ceased employment with Kellogg. The evidence was admitted subject to that objection. In my opinion, the evidence is admissible as it is relevant to the proof of the occurrence of the injury, and the extent to which it adversely affected, and affects, the plaintiff’s capacity to work.

Background

9 The plaintiff was born in the Philippines on 22 December 1948. After finishing high school he attended the Philippines College of Arts and Trades during 1967 and 1968. He left to assist his parents in the conduct of their grocery store. Between 1970 and 1972 he was employed as an apprentice sign writer, and from 1973 as a labourer/machinist by Standard Fans, a manufacturer of fans. Although without qualification, he was employed by Well Built Constructions between 1975 and 1976 as a model maker and draftsman. Subsequently he resumed working in his parents’ store. His duties included buying goods in the markets, and assisting his parents as required. From about 1979 to 1988 he was employed by Fil-Asia as a draftsman, and developed his skills on the job.

10 On 18 January 1973 the plaintiff married his wife, Teresita Sayseng. They have three adult children.

11 In 1988 the plaintiff came to Australia as an immigrant, and on 30 March 1988 applied in writing to Kellogg for factory employment. He commenced working for Kellogg on a casual basis in about April 1988, and on a full-time basis in December 1988 as a machine operator. On 16 December 1988 he applied to be admitted as a member of the fund, and was treated as having joined it on 9 January 1989. In December 1989 he was promoted to leading hand, and when that position was abolished in 1994 he was reclassified as a machinist.

12 The plaintiff continued employment with Kellogg until he applied in writing for voluntary redundancy on 9 September 1998, accepted redundancy and finished work on 21 September 1998. On 18 October 1998 the plaintiff lodged an application with the trustee for disability benefit on the basis that he was totally and permanently disabled as a result of low back problems which had developed since about January 1996. Both the trustee and the insurer rejected the claim. The insurer rejected the claim on 27 April 2000, and the trustee rejected it on 9 April 2001.

13 The plaintiff has not worked since the termination of his employment with Kellogg. For some months afterwards, until the end of 1998, he looked for work through employment agencies, including Centrelink. He also applied in writing in response to newspaper advertisements for process workers and machine operators. His attempts were unsuccessful.

14 His time is spent at home. He suffers from constant low back pain of fluctuating degree with associated lack of flexibility in movement. His ability to carry out ordinary domestic activities including cleaning, gardening, and shopping is very limited, as is his ability to walk, drive, and to lift objects. Pain and discomfort interrupt his sleep. He takes a variety of medication including Tramal, an analgesic, and Mobic, an anti-inflammatory medication.

Education, training and experience

15 The plaintiff commenced working for Kellogg on a casual basis in about April 1988, and on a full-time basis in December 1988. He was trained on the job as a machine operator to operate a machine which filled packaged cereal boxes. He was required to lift boxes containing 110 flattened cardboard boxes, and to load them onto a machine which filled them with cereal. The weight of the boxes and other loads in the process varied from about 12-18 kgs. Loading was rapid and repetitive, and involved continuous bending, lifting to about chest level, carrying and twisting. He also managed the progress of sealed cases of cereal products along a conveyor belt, which involved bending and lifting.

16 The plaintiff worked a lot of overtime. Usually he worked 12 hour shifts, with three half hour meal breaks, and averaged 48 hours per week. During product changeovers, (e.g. from Cornflakes to Sultana Bran) he was required to lift and carry tubs of excess cereal for dumping into a container. The tubs weighed between about 15–20 kgs.

17 The plaintiff was promoted to leading hand at about the end of 1989 and worked as such for about four years until the position was terminated. He then returned to work as before. The physical demands upon him were substantially the same throughout.

The injury

18 In June 1996 the plaintiff complained of low back pain. Following x-rays, Dr Cooke, radiologist, reported on 24 June 1996 a mild scoliosis which might be due to muscle spasm and a bony stress reaction at the sacro-iliac joints. The plaintiff continued to work with intermittent low back pain on a daily basis. He next consulted his general practitioner, Dr Esplago, on 15 August 1997 complaining of low back pain after prolonged hours at work. A CT scan of his lumbar spine was carried out by Dr Lim who reported, on 22 August 1997, that there was a disc herniation at L4/L5 resulting in relative spinal canal narrowing, and generalised bulging of the nucleus pulposus at L3/L4 obliterating the epidural fat.

19 On 25 August 1997 the plaintiff was referred to Dr Robin Mitchell, a specialist rehabilitation physician retained by Kellogg to design and manage rehabilitation programmes. The plaintiff attributed his symptoms to manual handling at work. Dr Mitchell found the plaintiff to have significant low back pain, and clinical signs of a lumbar disc lesion consistent with the CT findings. He considered him to be currently unfit for work.

20 On 5 September 1997 Dr J S Compton, neurological surgeon, reported to Dr Esplago on his examination of the plaintiff. The plaintiff complained to him of low back pain for more than one year which he attributed to heavy lifting at work as a machine operator. Dr Compton’s view was that the CT scan was certainly suggestive of disc prolapse with nerve root compression, and that it was probable that he would require surgical treatment for its resolution. On 19 September 1997 Dr Esplago noted that the plaintiff was much improved and able to tolerate more movement without much pain, and that he had been helped by physiotherapy. His view was that he was fit to start on a programme with the rehabilitation officer at work but on restricted hours, namely four hours with regular breaks. He thought it was too early to determine whether a permanent impairment had been sustained.

21 On 29 September 1997 the plaintiff commenced work under a rehabilitation programme for four hours a day on light duties subject to instructions which required frequent posture breaks, avoidance of bending or twisting, and with lifting limited to 5 kgs. He continued to do so until certified unfit on 11 December 1997. For many days during October and November 1997 the plaintiff was found to be unfit for work. Details of the programmes are contained in the Workplace Rehabilitation Plans (Ex C). Many of the plans included the following statement:

“The purpose of the rehabilitation program is to facilitate your safe and productive return to the workplace. While the Company will help to secure that outcome, if the objectives of a return to work program cannot be met, for whatever reason, the Company may terminate employment following the provisions of part 7 of the New South Wales Industrial Relations Act 1996. Unless stated otherwise, the objective of all programs is to return injured employees to normal pre-injury duties”.

22 Dr Mitchell next saw the plaintiff on 9 October 1997. He reported that the plaintiff had managed the four hour rehabilitation programme for the first two days, 29 and 30 September, but increasing pain prevented attendance between 1 and 6 October. He worked on 7 October, but left work next day because of pain. It was noted that although there was little pain in the morning, it would increase considerably after two hours of work. Although straight leg raising was full at 90 degrees, there was considerable muscle spasm with high level of low back pain experienced. Dr Mitchell found the absence from work to be not unreasonable, and that a gentle rehabilitation programme, working for four hours, could be resumed on 13 October 1997.

23 Dr Mitchell next saw the plaintiff on 31 October 1997. He commented that the plaintiff was fit for the current programme with certain restrictions, including regular mobilisation during the day. He noted the need for medication to control and relieve pain. The plaintiff was seen again on 7 January 1998 whilst off work. Following an examination which included full straight leg raising, it was considered he was making good progress.

24 The plaintiff was referred by his general practitioner, Dr Tablante, to Dr Giblin who first attended him on 11 December 1997. Dr Giblin found his symptoms compatible with the stenosis shown by Dr Lim’s CT scan of 22 August 1997. He certified that the plaintiff should cease rehabilitation until further notice. Examination of the plaintiff’s legs showed no evidence of neurological involvement in his lumbar spine. His assessment was that pain came from the point at L4/L5 without any nerve impingement, and found that focal pain and inability to extend the lumbar spine was consistent with the radiological findings. Dr Giblin said that the pain was produced by the bones pinching together, and from the soft tissues being stretched by the disc prolapse, and the inherent inability caused by the disc.

25 On 13 January 1998 the plaintiff underwent an MRI scan of the lumbar spine. Dr R Shnier’s report disclosed that the invertebral discs at L3/L4 and L4/L5 were desiccated, and that at L3/L4 there was degenerative disc bulging and at L4/L5 a disc protrusion causing narrowing of the spinal canal.

26 On 21 January 1998 Dr Kerr reported on a CT lumbar myelogram for the plaintiff which showed diffusive bulging of the L4/L5 disc but no definite evidence of nerve root compromise.

27 Dr Giblin saw the plaintiff again on 19 and 22 January 1998 when there was no improvement. On 3 March he found some improvement, and certified the plaintiff fit to attempt restricted duties on 9 March 1998.

28 The plaintiff returned to work under the same rehabilitation programme on 9 March 1998 and continued on light duties until employment terminated on 21 September 1998. During the period the shifts increased gradually from four to 12 hours, and the weight limit increased from 5 kgs to 6 kgs. In evidence (Ex D) was a daily progress monitoring sheet for the period 12 March – 17 September 1998, which was completed by the plaintiff each hour of the working day. It recorded, inter alia, a description of the difficulties, and the degree of pain, experienced. It evidences that the plaintiff suffered constant pain of varying degree, and stiffness, in his low back which he relieved by stretching exercises.

29 Mr D Brown, occupational psychologist, assessed the plaintiff for Kellogg on 6 March 1998. He described the plaintiff as not an assertive person with a risk that he would not deal with mounting issues until he felt totally unable to continue. He noted the plaintiff’s lack of tolerance for sitting, which suggested that after the 45-minute drive to work he did not arrive “… in the best possible condition”. He saw him again, at work, on 4 June 1998. He noticed that the plaintiff had difficulty in carrying out the duties assigned to him, and in working at the pace required. He noted that the plaintiff was not familiar with the methods required on the bulk line and the packing line. He recommended further training and supervision to achieve a better result. Mr Brown’s impression was that the plaintiff had found a level of “tolerable discomfort”, and suggested he be trained to use recommended work methods, and to use his own pain level charts “… to prove to him that the work he is doing is not making him worse”. He commented that if these were done “… (Kellogg) will at least have a chance of increasing his duties to a more normal level”.

30 On 14 April and 1 June 1998 Dr Giblin found the plaintiff to be suffering from persisting mechanical back pain being the soft tissue and arthritic pain of which he had always complained. On 1 June 1998 he advised the plaintiff that unless he had long term light duties he would have to cease work.

31 Dr D M Salmon first saw the plaintiff on 1 June 1998 and commenced a programme of pain management which included medication. On 22 June 1998 he performed a lumbar facet nerve block without significant relief. On 28 July 1998 he administered a lumbar epidural steroid injection which reduced lumbar pain levels. On 3 November 1998 he found the plaintiff was experiencing less leg pain and was able to walk.

32 Dr D Bornstein, orthopaedic surgeon, saw the plaintiff on 11 June 1998 for Kellogg’s workers’ compensation insurer. He examined the plaintiff and viewed the radiological reports. His opinion was that the plaintiff had a degenerative and bulging disc at L4/L5 with which his symptoms were consistent. He stated that the plaintiff was not fit for the work he was doing. His opinion was that the nature and conditions of his employment had not caused, but had exacerbated, the condition. He said that the plaintiff will never be fit for heavy manual work, and for “bending/lifting/carrying type work”, and that anything which involves bending/lifting was reasonably inappropriate and likely to lead to an increase in symptoms. He thought that he would never get back to packing line operating on a full-time basis but would be able to carry out light duties. Dr Bornstein said that the plaintiff would continue to have problems with his back indefinitely, and could suffer sever recurrences of pain from time to time, and it would be prudent to alternate standing, walking, sitting, and posture as much as possible. He thought it would be more appropriate to maintain him on permanent light duties.

33 On 14 September 1998 Dr Gray reported on a CT scan for the plaintiff which showed a moderate broad based bulging of the L4/L5 disc, and canal stenosis, but no direct pressure on the nerve roots.

34 On review on 17 February 1999, Dr Salmon found no significant change in pain levels, and noted that the plaintiff complained of left low back pain but not of leg pain. He noted that the plaintiff was attending a CRS retraining programme in jewellery sorting. On 29 April 1999 he noted the retraining did not proceed, and that the plaintiff’s situation was unchanged. On 20 July 1999 medication was prescribed for pain related sleep disturbance, and lumbar pain which was exacerbated on turning.

35 Dr J G Bodel, orthopaedic surgeon, examined the plaintiff on 25 February 1999 for the workers’ compensation insurer. The plaintiff reported constant back pain which was aggravated by prolonged sitting, bending, twisting or lifting, and intermittent leg pain worsened by prolonged standing or walking. Dr Bodel’s opinion was that the plaintiff suffered from mechanical back ache with disc disease at L4/L5 with an element of vertebral canal stenosis. He found the plaintiff to be unfit for his pre-injury work, or any other work which required unprotected bending, twisting or lifting. He said he may be able to tolerate part-time light duty work where he could change position frequently and avoid lifting more than 10 kgs. He said that, overall, the prognosis was guarded and the plaintiff may have great difficulty in returning to work.

36 Dr W H Wolfenden, neurologist, saw the plaintiff on 1 April 1999. His view was that the plaintiff had considerable damage to his L4/L5 disc which was irritating sciatic nerve roots and producing sciatic pain in both legs, and was attributable to employment conditions between 1988 and 1998. He said he was totally unfit for work, and certainly not fit for any work involving bending and lifting. He thought he would be unable to find work anywhere, that the prognosis was poor, and he would always have a bad back.

37 In his report of 13 October 1999 Dr Giblin stated his opinion of the plaintiff’s ability to work based on the abovementioned attendances. He said that the plaintiff appeared to have a work related soft tissue injury to his low back, with a guarded prognosis for the short, medium and long term. In his opinion the plaintiff should be considered as fit only for light duties, avoiding heavy repetitive bending, lifting and twisting and prolonged periods of uninterrupted sitting and standing. His view was that the plaintiff was permanently unfit to do his normal job as a packing machine operator on a full-time or part-time basis.

38 Dr P D Funnell, a specialist in rehabilitation medicine, examined the plaintiff on 12 January 2000. The plaintiff described constant pain over his low back which was aggravated by sitting or standing for more than 30 minutes, and by twisting his back to either side. He said he was unable to do more than very light physical activity. From the radiological investigations, Dr Funnell observed some narrowing of the spinal chord at L4/L5 disc which, together with the disc bulge, could predispose him to the condition of central spinal canal stenosis. Dr Funnell’s view was that neither the radiological investigations nor his findings on clinical examination supported the plaintiff’s claims of pain, and that he reported pain at times when, in his view, it should not have been present. After interview and examination, his opinion was that the plaintiff had suffered a minor injury which should not have rendered him totally unable to work. He could see no reason why the plaintiff should not return to his previous full-time employment as a machine operator to do manual handling work limited to 15 kgs.

39 In cross-examination he accepted that the plaintiff’s injury was of a kind which waxes and wanes from day to day. He did not have Dr R Shnier’s report of 13 January 1998 of an MRI scan. Dr Funnell agreed that for identification of disc structure a MRI scan was superior to a CT scan, and found it important that the MRI scan did not reveal impingement of the nerve roots. His overall view was that there was some narrowing of the spinal canal but not enough to compress the nerves. He accepted that the plaintiff’s record of constant pain experienced during the last six months of employment was consistent with the findings of the MRI scan. Nevertheless, he considered the plaintiff to be fit for office work involving sitting and standing, and the ability to change posture freely as required. He said (T p 108):

“My assessment … was a physical assessment of this gentlemen in terms of the physical capabilities and possible impairments related to his back injury. I would recognise that, at his age, with his social and cultural background, it would be no easy thing to achieve employment in those areas but, in terms of his back injury, that didn’t prevent him from pursuing those occupational roles.”

40 Dr A J Bookallil, neurosurgeon, saw the plaintiff at the request of Kellogg’s workers’ compensation insurer on 15 June 2000. In his report of 19 June 2000 he stated that the radiological investigations showed that the plaintiff suffered from chronic disc degeneration of L4/L5 with a disc protrusion and mild lumbar canal stenosis. He did not doubt the plaintiff’s history of continuing increasing pain in back and legs which worsened with standing, walking, or sitting, was consistent with the radiology.

41 Dr Bookallil’s opinion was that the injury was due to heavy work and, although there was not a specific incident, during 1996 the plaintiff developed increasing back pain which ultimately resulted in him stopping work. He did not believe the symptoms were due to any pre-existing problem. His assessment was that the plaintiff’s ability to lift, carry, and sit was impaired, and that he had difficulty with walking any distance. In his report of 19 June 2000 Dr Bookallil stated his opinion as to the plaintiff’s fitness for employment thus:

“Mr Sayseng is unfit for full duties and if he did go back to work, he could not do heavy work. He would be advised to avoid heavy lifting and carrying. He would be fit for selected duties if it did not involve any lifting or carrying. He would be fit for a sedentary job.”

42 He went on to say that the plaintiff was capable of performing some duties although he would not be able to do the heavy work that he had been doing at Kellogg’s, and should avoid heavy lifting and carrying. He did not indicate the nature of the duties to which he referred. His prognosis was that it was likely that the plaintiff’s symptoms will persist into the future.

43 Dr D M Billett, orthopaedic surgeon, attended the plaintiff at the request of the insurer on 30 October 2000. The plaintiff complained of lumbar pain on a constant daily basis, although variable, with intermittent leg pain. Dr Billett viewed the radiological information. He thought that the pre-existing constitutional degenerative changes in the lumbar spine shown on the x-rays were probably aggravated by repetitive bending and lifting at work. However, he considered that the effects of aggravation had ceased, and attributed current symptoms to underlying degenerative changes in the lumbar spine.

44 Dr Billett’s opinion was that the plaintiff is capable of working, but should limit weight to 12 kgs, control repetitive bending, and sit or stand as the need arises. He thought the plaintiff could work as a shop assistant, a gatekeeper, a console operator at a service station, or could do light process work. He was unable to recall the duration of his attendance, or to identify what, if any, earlier reports or other information concerning the plaintiff he had taken into account in forming his opinion. He said that his opinion as to ability to lift a load of 12 kgs was based on his clinical findings. He was unaware of the limit of 5 or 6 kgs imposed under the rehabilitation programme. The radiological information to which he referred in his report indicated to him that restriction was justified.

45 Dr Mitchell saw the plaintiff on 14 August 2000. He had not seen him since 7 September 1998. The plaintiff told him that his symptoms had not improved to any degree at all, and that he could tolerate sitting, walking, or standing for periods of up to 30 minutes before discomfort increased and a change of posture was required. In his report of the same day he expressed disagreement with the views of Dr Tablante and Dr Giblin that the plaintiff was unable to work. His opinion was that he was able to do “normal work, in lighter process” which took into account the requirements indicated by all the doctors except Dr Wolfenden.

46 In cross-examination Dr Mitchell explained that the basis for his disagreement was his opinion that the plaintiff was able to do sedentary and light physical work, and that it was untrue to suggest he was unable to do anything at all (T p 165). The basis for his criticism of Dr Wolfenden, as I understood it, was his opinion that, although the doctor was a highly regarded clinical senior neurologist, he would have known little of return to work programmes and therefore no weight should be given to his opinion that the plaintiff would be unable to find employment anywhere. He accepted the conclusions of the treating doctors and the relevant specialists. He said (T pp 166, 167):

“… I accept them, in fact, on this particular case. I agree with them. The bloke's got a bad back - that's the end of it so far as rehabilitation is concerned. You can't go back and do work on a back again. My job is fairly easy. Once you have had a bad back, even if and when you do recover, you don't go back to the hard work that aggravated it, you modify the job. We do that all the time, change jobs upside down to make them able to be carried out without imposing potentially harmful loading upon him.”

47 With regard to the rehabilitation programme, Dr Mitchell accepted that it simply did not work for the plaintiff, which was a powerful indication that the plaintiff could not return to arduous work. He went on to say (T p 167) “… But rehabilitation moves on. It goes into retraining, goes into finding long term suitable alternative work. It just doesn't give up because a program falls over or doesn't succeed.”

48 On 22 November 1999 Dr Salmon reported to the insurer on his recent examination of the plaintiff and findings on earlier occasions. His opinion was that no treatment would enable the plaintiff to overcome his reduced physical tolerances. He stated that he was unfit to perform his normal job as a packing machine operator on a full or part-time basis. Because of the plaintiff’s employment experience with a physical bias for 10 years, Dr Salmon did not believe he would return to the work force because of limited transferable skills.

49 Dr Salmon reviewed the plaintiff on many occasions during 2000 and 2001. His reports indicate no significant change in the plaintiff’s condition for which various forms of medication were prescribed.

50 On 21 May 2001 Dr T Sing reported on a CT scan. It showed that at L3/L4 there was mild to moderate central canal stenosis. At L4/L5 there was a moderate to severe canal stenosis due to a moderate broad based posterior disc bulge, and a narrowing of the left neural exit foramen, with possible left L4 nerve root irritation.

51 When he reviewed the plaintiff on 23 May 2001 Dr Giblin found no sign of clinical improvement. The plaintiff still complained of pain in his back and legs. He referred to Dr Sing’s CT scan which accorded with what he expected. Dr Giblin advised that lumbar spinal decompressive surgery would be required in the reasonably near future, and considered the plaintiff to be unfit for his pre-injury job as a packing machine operator on either a full-time or part-time basis.

52 In his report of 14 March 2006 Dr Giblin explained that lumbar canal stenosis is a progressive disorder which, if left surgically untreated, leads to increasing pain, loss of function, and paralysis of the legs and loss of bladder and rectal control. He said, in evidence, that the plaintiff was in the early phase of this clinical deterioration and will suffer periods of back and leg pain which will, over time, increase in intensity and frequency, thereby rendering him quite unreliable in terms of productive work output of a physical nature and arriving at work and getting home from work. He said (T p 116) that the underlying injury would be permanent and progressive, and would present in terms of exacerbations and remissions, and would be readily susceptible to minor physical events producing severe exacerbations. With regard to ability to perform work as a shop assistant, gatekeeper, or console operator, as suggested by Dr Billett, Dr Giblin said that the plaintiff might be fit to do such type of work provided the duties were light, and he was free to turn up to, and leave, work when he wished.

53 Dr Giblin last saw the plaintiff on 14 November 2006. The complaints continued to centre on the lumbar spine as having sharp stabbing pains and a general burning sensation. The plaintiff said he still had difficulty standing or sitting for periods of 15-20 minutes, and could not stand bent forward for more than a few minutes before having to change position. Dr Giblin said this was consistent with the radiological information, including the MRI report of 13 January 1998. As he expected, Dr Giblin found the plaintiff’s condition to have remained reasonably stable, and he adhered to the thrust of his earlier opinions.

54 In cross-examination (T p 124) he explained that variation in the plaintiff’s ability to straight leg raise during a medical examination is attributable to his pathology which presents with exacerbations and remissions, with signs varying from doctor to doctor and from day to day. I did not understand him to qualify his evidence in chief.

55 Miss Lyn Gosling, occupational physiotherapist, examined the plaintiff on 14 March 2004 for the insurer. She reported that his pain behaviour was excessive and exaggerated during the assessment except when he was concentrating on tasks and forgot to be consistent. She stated that the plaintiff’s maximum tolerances could not be determined due to his lack of co-operation. She concluded that due to his disc pathology it would be appropriate for him to perform semi-sedentary work or work where he can vary his posture between sitting and standing, and where he was not required to lift heavy weight repetitively.

56 Of the various medical reports provided to her, she referred only to Dr Funnell’s of 12 January 2000, and quoted his view that the plaintiff could return to his previous full-time employment as a machine operator. She said she did so because her interest was in future employability, not diagnosis, and she agreed with Dr Funnell’s view of the plaintiff’s employability. She saw the plaintiff once only, had no recollection of him, and accepted that she would have been in a better position to assess him had she seen him over a period of time on a number of occasions.

57 Dr Augusto Tablante has been the plaintiff’s general practitioner since he attended him on 24 September 1997. He converses with the plaintiff in Filipino, their native language. Since then he has seen the plaintiff about once every two months. Initially the plaintiff complained of pain in the centre of his lumbar spine which radiated out to the hips and down the sides of his legs. He said that thereafter the plaintiff has consistently complained of chronic low back pain which, to his observation, is genuine. His opinion is that it probably comes from the lesion in the low back and nerve irritation.

58 Dr Tablante said that over the years the pain has been gradually increasing so that he is in more discomfort than he was in 1997 and 1998. This is reflected in the amount of medication required to enable the plaintiff to function from day to day. Dr Tablante currently prescribes Tramal, a very strong analgesic, and Mobic, an anti-inflammatory drug to reduce swelling and inflammation around the stenosis.

59 Dr Tablante’s opinion is that the plaintiff has been unable to work since January 1998 in that constant pain, of fluctuating degree, has rendered him unable to bend, lift, or to twist his back, or to sit or stand for longer than 30 minutes at a time without changing position. He says that the plaintiff would never be able to do the work for which Kellogg employed him, and is incapable of any lifting or carrying, particularly if repetitive, and thus is unable to work, for example, as a shop assistant.

Determination

60 The insurer submitted that the plaintiff has failed to prove that, at any relevant time, he was in the condition of total and permanent disablement within the meaning of the policy. In summary, it was put that at the time he ceased working the plaintiff was able to work on a full-time basis in that he was performing work within the requirements of the workplace rehabilitations plans for August and September 1998 on 12 hour rosters averaging 40 - 42 hours per week. It was put that, in any event, the plaintiff was capable of doing part-time the kind of work which, pre-injury, he had done full-time, and thus did not meet the test. It was argued that the plaintiff’s progress through the rehabilitation programmes showed he was able to do the work required under them, and that in the last few weeks before he took redundancy he was back to working long shifts although under some degree of pain and discomfort. In other words, it was put that he was able to carry on to a limited extent work similar to his previous work on the production line.

61 The insurer further submitted that great weight should be given to the opinions of those engaged in rehabilitation, particularly to Dr Mitchell’s evidence as he was the person who designed the programmes and was involved on a weekly basis with the plaintiff. It was put that Dr Mitchell was best able to judge the plaintiff’s capacity. It was submitted that, had the plaintiff been unable to cope with the requirements for a plan for one week, it is to be inferred that he would not have agreed to a plan for the following week which increased the hours or the tasks to be worked. It was said that the plans evidenced steady improvement until the plaintiff left on 21 September 1998.

62 For the plaintiff it was submitted that his disablement was total and permanent as defined. It was put that he suffered from the disability from at least late in 1997, and it continued whilst he attempted unsuccessfully to carry out light duties in accordance with the rehabilitation programme. It was put that he took redundancy simply because he was unable to endure any longer working 40 hours a week, even on light duties within the prescribed limitations.

63 The definition of “total and permanent disablement” has been considered in many cases. To meet the test in the definition the insured is required to prove that he is incapable of performing any occupation or work which he is reasonably capable of performing by reason of education, training, or experience. It is said to be a stringent test. It is one to be considered by reference to his existing education, training, and experience. The court is required to ascertain what the insured is actually capable of doing with regard to the qualification that the capacity for work under consideration is that for which the insured is reasonably capable of performing by reason of education, training, or experience. If he requires retraining in order to be employable, he is totally and permanently disabled within the definition. (Dumitrov v SC Johnson & Son Superannuation Pty Ltd [2006] NSWSC 1372, para 29; Ivkovic v Australian Casualty and Life Ltd (1994) 10 SR (WA) 325, p 351.)

64 The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the insured would actually obtain work for reward (i.e. paid employment) for which he is qualified by education, training or experience, and whether his condition has disabled him from doing what he is qualified to do. The court is expected to take a realistic and common sense approach in its assessment. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory. (Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945, per Bryson, J para 54; Ivkovic p 351; Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55, paras 64, 65, 68.)

65 In my opinion the evidence (e.g. Drs Giblin, Bornstein, Bookallil, Wolfenden, Billett) establishes that the plaintiff’s injury is work related, the probability being that his conditions of employment exacerbated a degenerative condition of his low back thereby rendering him incapable of working as a machine operator or on a packing line involving bending, lifting or carrying. This situation was recognised by Dr Mitchell on 25 August 1997 when he considered the plaintiff to be unfit for work. The evidence shows that between 29 September and 11 December 1997 the plaintiff unsuccessfully attempted to work for Kellogg under its rehabilitation programmes.

66 On 11 December 1997, Dr Giblin certified that the plaintiff should cease rehabilitation until further notice. The plaintiff remained unfit to resume work under the rehabilitation programmes until 9 March 1998. Thereafter, until employment ceased on 21 September 1998, the plaintiff attempted what was required of him although with constant pain of varying degree, and stiffness in his low back, which he relieved by stretching exercises. The plaintiff’s inability to carry out the programmes was not effectively lessened under the pain management scheme of Dr Salmon which included a lumbar facet nerve block and a lumbar epidural steroid injection on 22 June and 28 July 1998, respectively.

67 In my opinion, the weight of the evidence which I have summarised above leaves no room for doubt that the plaintiff’s work-related low back injury rendered him in the condition of total and permanent disablement within the meaning of the policy. The evidence supports the finding, which I make, that the plaintiff has suffered from this condition probably since 11 December 1997 when found by Dr Giblin to be unfit to continue under the rehabilitation programme until further notice.

68 Furthermore, the evidence, overall, supports the finding that since his redundancy on 21 September 1998 he has been in this condition continuously to the present time. In other words, it supports the finding, which I make, that the plaintiff has been absent from work through injury for an initial period of six consecutive months which expired on 21 March 1999, and thus fulfils the first limb of the definition.

69 Strong support for these findings is provided by the evidence referable to the rehabilitation programmes. Their purpose was to facilitate a safe and productive return to the work place, and to normal pre-injury duties. Looking at the situation realistically, by putting the plaintiff on programmes which were specially designed with regard to his condition, Kellogg accepted that he was incapable of doing the work for which he was trained and experienced. As far as the plaintiff was concerned, they provided an artificial environment in which an attempt was made to train him to do light manual work within limitations imposed by the pain and physical restrictions attributed to his condition. He was required to undertake duties different in substance to the work he was qualified by education, training, and experience to do. In the end, the programmes failed in that the plaintiff was unable to participate further and was left in the condition in which he was when Dr Giblin saw him on 11 December 1997.

70 In paras 46, 47 above, I referred to Dr Mitchell’s acceptance of the treating doctors and specialists, and that the rehabilitation programmes did not work for the plaintiff. He provided an apt summary in these words (T p 167):

“The bloke’s got a bad back – that’s the end of it so far as rehabilitation is concerned. You can’t go back and do work on a back again.”

71 Mr Brown’s evidence is also relevant. On 4 June 1998 he noticed the difficulties experienced by the plaintiff in carrying out the work assigned to him under the programme, and that the plaintiff was not familiar with the methods required on the bulk line and the packing line. He recommended further training and supervision to achieve a better result. He saw the programme as providing Kellogg with “at least a chance of increasing (the plaintiff’s) duties to a more normal level” if he could be persuaded to work to a level of “tolerable discomfort”. That the plaintiff continued until he could endure it no longer is consistent with Mr Brown’s observation that the plaintiff would not deal with mounting issues until he felt totally unable to continue.

72 The opinions of Drs Funnell, Billett and Miss Gosling are, in substance, inconsistent with the finding that the plaintiff’s disablement is total. I have taken their evidence into account. My impression of their evidence was that it was directed to the question of, to use Miss Gosling’s words, future employability rather than to the narrower one of whether the plaintiff was unable ever to work for reward in work which he was reasonably capable of performing by reason of education, training or experience. However I am satisfied that when it is assessed with regard to the bulk of the other evidence, including that of the plaintiff’s wife and daughter, it does not justify a different conclusion.

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

74 For the above reasons the inevitable finding on the evidence is that the plaintiff falls within the definition of total and permanent disablement. Accordingly, in answer to the separate question, I have determined that the plaintiff was at all times relevant to his claim against the fund in the condition of total and permanent disablement within the meaning of the policy. He is entitled to a declaration to that effect.

Relief

75 The plaintiff claims that, being a person in a condition of total and permanent disablement, the insurer is obliged to pay the trustee the agreed benefits under the policy. He also claims an order that the insurer pay him direct the sum of $800,000.00 by way of automatic acceptance level cover (the AAL) under the policy.

76 Before turning to each claim, it is helpful to keep in mind the scheme of the fund as it affected the trustee and the plaintiff, and the insurance contract evidenced by the policy as it affected the insurer and the trustee. With respect, Bryson, J provided a comprehensive explanation of the operation of the scheme and the policy in Sayseng (paras 7-22) which is unnecessary to repeat in these reasons. In short, the trustee receives the payment of any benefit which the insurer is obliged to pay. The trustee, not the plaintiff, was the insured under the policy. The trustee’s relationship with the plaintiff is governed by the terms of the trust deed. It is required to make a determination of his application for benefits for total and permanent disablement in accordance with rule 10 quoted earlier (para 4).

The agreed benefits claim

77 “Agreed Benefits” is defined in the schedule to the policy to be the level of cover payable on the death or total and permanent disablement of an insured person in such amount as agreed between the trustee and the insurer from time to time. It is common ground that the amount is payable by the insurer to the trustee. The issue is quantum.

78 The insurer submitted that the amount payable was $147,055.00, which was calculated in accordance with a formula on the basis that the relevant annual salary of the plaintiff was $50,968.00. In support, it relied upon the evidence of Miss Kristine Nugent and Mr G A Creeley, and documentation which showed that the amount, and the process by which it was calculated, was agreed between the insurer and the trustee.

79 For the plaintiff it was submitted that the relevant salary was that which the plaintiff last earned before he was disabled, namely $69,031.00 which, on the same formula, would result in a benefit of $199,171.25 (T p 275). The plaintiff led no evidence in support of his claim.

80 As I understood it, the thrust of the plaintiff’s submission was that the salary figure relied upon by the insurer, namely $50,968.00, was one which wrongly excluded sums paid for overtime or bonuses. It was put that this situation came about because reliance was placed upon the definition of the term “salary” which was contained in a policy which had been replaced by the policy presently under consideration. The earlier policy was a reinsurance agreement between the insurer (formerly known as The Victory Reinsurance Company of Australia Ltd) and the trustee dated 7 November 1980. It was put that the definition in the earlier policy was inapplicable under the later policy which was dated 1 July 1998, with the result that the plaintiff’s salary figure, $69,031.00, which apparently included payment for overtime and was the last earned before disablement, should properly be taken as the basis for calculation of the agreed benefits.

81 The plaintiff’s submission is not accepted. It cannot survive analysis of the documents to which Miss Nugent and Mr Creeley referred. Relevantly, application on behalf of the trustee for Group Life Insurance cover was made on 26 October 1992. The benefit formula was stated to be:

“The greater of 3 times current salary and the projected normal retirement benefit based on current salary.”

82 In about May 1998 the parties reviewed the reinsurance agreement. As the insurer’s letter of 29 May 1998 to the trustee’s agent shows, apart from specified terms all other terms and conditions of the existing contract remained unaltered. Whilst the reinsurance agreement was in force, the trustee caused to be sent to the insurer annually a schedule of insurance benefits which the insurer accepted on the basis that the premium was paid. Relevantly, the letter of 23 February 1999 from the insurer to the trustee’s agent and the documents enclosed with it (Ex F) establish that the schedule of benefits submitted to the insurer on 4 February 1999, including the plaintiff’s total and permanent disablement benefit, were agreed by the insurer. As submitted on behalf of the insurer, the documents show that the TPD sum assured is $147,055.00 based on an annual salary of $50,968.00. The formula and calculation for the benefit was set out in the letter of 4 November 1998 from the trustee’s agent to the insurer.

83 The short point is that the amount of $147,055.00 was the amount which the insurer and the trustee agreed to be the agreed benefit payable under the policy, whereas the amount for which the plaintiff contended was not an amount agreed between them. Accordingly, in my opinion, the insurer is liable to pay to the trustee the amount of $147,055.00 as an agreed benefit under the policy, together with interest, as a consequence of the plaintiff’s total and permanent disablement.

The Automatic Acceptance Level claim

84 The plaintiff submitted that the insurer was liable to pay him the amount of $800,000.00 being the “Automatic Acceptance Level” shown in the schedule. He put that the insurer’s liability turned on the proper construction of the following provisions of the policy which appear under the heading “Extent of Cover”:

“Where an Automatic Acceptance Level is shown in the Schedule:
1. Cover shall be granted to any person who is eligible to become an Insured Person up to the Automatic Acceptance Level, cover or any other person may only be granted subject to our usual acceptance requirements;
2. Where the level of cover for a person who is eligible to become an Insured Person or for an Insured Person is sought in excess of the Automatic Acceptance Level, we will notify you of the information we require to underwrite the excess cover ….”

85 The plaintiff argued that, in terms, the insurer agreed to grant cover up to the AAL to any person who is eligible to become an insured person. He submitted that, when read with the opening words of cl 2, the class of persons eligible to become insured persons should be understood to include insured persons and, thus, himself. It followed, so it was put, that these provisions should be understood to mean that the insurer had granted cover to a person who was not a party to the contract. In aid, it was pointed out that the policy distinguishes between agreed benefits, which are payable to the trustee, and cover up to the AAL which is expressed to be granted to the insured person, so that liability to the insured person is not discharged by payment of the agreed benefit to the trustee (T p 320).

86 The insurer submitted that the plaintiff’s claim was misconceived. It argued that the plaintiff, although an insured person within the meaning of the policy, has no entitlement to payment under it. Furthermore, having regard to the operation of the fund, the plaintiff has no prima facie entitlement to any benefit which the insurer is liable to pay the trustee. It pointed to the distinction between cover and benefits made in the insuring clause, and in the provisions as to the extent of cover granted, which included the promise to pay the agreed benefits upon the death or total and permanent disablement of an insured person. It argued that nothing in the policy supports the proposition that the sum of $800,000.00 specified in the schedule as the AAL was an amount payable to an insured person in addition to the agreed benefits payable to the trustee. It was submitted that it was self evident from their language that the provisions referable to the AAL relied upon by the plaintiff, as to cl 1, concerned the level to which cover shall be granted, and as to cl 2, concerned underwriting considerations where excess cover was sought. In short, it was submitted that the insurer’s liability under the policy was to pay to the trustee the agreed benefits upon the death or total and permanent disablement of the plaintiff as the insured person.

87 Additional grounds in opposition stem from the late raising of this claim. It was first pleaded in the amended statement of claim filed in court during final submissions on 27 February 2007. The insurer submitted that, with regard to the conduct of the proceedings before Bryson, J, and before the Court of Appeal, and to their judgments, it is no longer open to the plaintiff to raise the claim for determination in the present proceedings. It was put that the plaintiff’s claim to receive the AAL in addition to the claim for payment of agreed benefits to the trustee ought to have been raised for determination by Bryson, J, and the plaintiff has offered no explanation why it was not. The insurer relied upon the doctrine in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 to deny the plaintiff the opportunity for the determination of the claim in the circumstances. In any event, it was put that the judgments have foreclosed the issue against the plaintiff.

88 The plaintiff rightly accepted that this claim was not before Bryson, J. However, he argued that as it raises construction issues not dealt with by either His Honour or the Court of Appeal it should be determined in these proceedings.

89 I accept the insurer’s submissions, and reject the claim. In my opinion the principles in Anshun apply fairly and squarely in the circumstances of this case. The construction issue referable to the AAL could, and should reasonably, have been raised in the earlier proceedings. The plaintiff should not be permitted to raise them now.

90 Alternatively, the determination of the proceedings at first instance and on appeal necessarily involved comprehensive consideration of the policy and the proper construction to be given to it. Relevant passages of the judgment of Bryson, J include paras 20, 21, 22, 78, 80, 81, and 91. It is sufficient to quote the following:

“21 Upon the language used in the Group Life Contract, Hannover does not agree to hold Insured Persons (including Mr Sayseng), insured themselves, and does not agree to pay benefits directly to Insured Persons. Under the heading “EXTENT OF COVER” the contract provides: “If an Insured Person dies or suffers Total and Permanent Disablement during any period for which premium has been paid for that Insured Person, we shall pay the agreed benefits.” When read with Condition 9, this must be understood as an agreement to pay the agreed benefits to the Trustee. In some respects, not bearing on entitlement to benefit for Total and Permanent Disablement, the Group Life Contract does purport to confer entitlements on Insured Persons; these appear under the heading “Option to Continue Cover” and, according to their terms, give an Insured Person a right to effect an individual policy of life insurance with an insurance company nominated by Hannover, after the Insured Person ceases employment.
22 Hannover did not, by the terms of its policy, insure or purport to insure Mr Sayseng. In this respect the Policy is unlike the policy considered in Trident General Insurance Co. v. McNeice Bros Pty Ltd (1988) 165 CLR 107. Nor is Mr Sayseng entitled to recover under the insurance by subs.48(1) of the Insurance Contracts Act 1984, as he is not specified or referred to in the policy whether by name or otherwise as a person to whom the insurance cover extends; notwithstanding his being one of the class of persons referred to in the Policy as Insured Persons the policy overall makes it clear that payments are to be made only to the Trustee. It is also doubtful whether the Group Life Contract falls within the class of general insurance referred to in s.48.
…
78 I turn to address the standing of Mr Sayseng to bring these proceedings against Hannover. Hannover did not contest Mr Sayseng’s standing, but it is appropriate that I say why I have accepted it. As the policy does not purport to extend insurance to Mr Sayseng or to the Insured Persons referred to in it, the reasoning which led the majority of the High Court of Australia in Trident General Insurance Co. Ltd v. McNeice Bros Pty Ltd (1988) 165 CLR 107 to conclude that the subcontractor in that case was entitled to enforce the insurance has no present application. There was no basis for Mr Sayseng or any other Insured Person to assume that insurance by Hannover was effectively available to them personally, or available in any other manner than the indirect path of their having an entitlement to a payment from the Kellogg Retirement Fund, with the Trustee having a corresponding entitlement under the Group Life Contract to have insurance money paid into the Fund. Trident General Insurance Co. Ltd v. McNeice Bros Pty Ltd related to provisions which in explicit terms purported to extend insurance to subcontractors. Provisions like these were familiar in indemnity insurance and had often been acted on. See Barroora Pty Ltd v. Provincial Insurance Ltd (1992) 26 NSWLR 170 (Brownie J) at 174 to 179.”

91 Relevant passages of the judgment of Santow, JA in the Court of Appeal include paras 30, 39, 41, 55-57, 62-66, 70, 72. It is sufficient to quote the following:

“70 Accordingly, I would go further than the trial judge who restricted himself to concluding that Mr Sayseng had standing to challenge the Trustee’s determination, but fell outside the decision in Trident . Thus, I would conclude that Mr Sayseng, though not entitled to the proceeds of the policy, was entitled to the same obligation of good faith and fair dealing as was owed by the insurer to the Trustee, taking account of their respective positions. That obligation, being a bilateral one, enures also for the benefit of the insurer as Mahoney JA observed in C E Heath Casualty and General Insurance Ltd v Grey (supra) at [36]:
“In my opinion, a third person involved in a transaction of insurance may be bound by the principle of uberrima fidae (utmost good faith) and, to the extent he is, may be under a duty to disclose facts affecting the insurance; however, the extent of the duty imposed on the third person will depend on the circumstances of his involvement.”
…
72 However, even if the Trident principles were inapplicable to the present case because of the differences between the facts of that case and this, I consider that the duty of good faith and fair dealing should nonetheless apply as between insurer and third party employee. I do so given the latter’s total dependence on payment by the insurer to the Trustee in circumstances where that must have been appreciated by all parties to the tripartite arrangement and because, in particular, the policy is held by the Trustee for “the benefit” of the employees in the wider sense of benefit; cf Mahoney JA in the earlier quoted passage from C E Heath Casualty & General Insurance Ltd v Grey at 37-8.”

92 In my opinion these judgments have decided that the plaintiff has no entitlement to any payment by the insured under the policy and, accordingly, they require me to reject this claim.

93 In any event, independently, I have come to the conclusion that the construction for which the plaintiff contended is wrong. The proper approach to the construction of the policy accepts that as it is a commercial contract it should be given a business-like interpretation. Its interpretation requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure. McCann v Switzerland Insurance Australia Ltd & Ors (2000) 203 CLR 579, p 589. As with other instruments, preference is given to a construction supplying a congruent operation to the various components of the whole. Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, pp 381-382; Wilkie v Gordian Runoff Ltd & Ors (2005) 221 CLR 522, pp 528-529.

94 The meaning of cl 1 referable to the AAL is to be ascertained with that approach in mind. In my opinion the word “to” where it appears in the phrase “Cover shall be granted to any person … “ means “for” or “in respect of”. So understood, the word is consistent with those words as used by the draftsman in the remainder of cl 1, and in cl 2, and in the following provision which deals with the situation where no AAL is shown in the schedule. These provisions are quoted in para 5 above. So understood, the phrase becomes consistent with the terms of the insuring clause, and of cl 9 and, generally, with the manifest intention that any payment is to be made to the trustee and not to the insured person.

Conclusion

95 The plaintiff is entitled to a declaration that, continuously since 11 December 1997, he has been in a condition of total and permanent disablement within the meaning of the policy. In the circumstances, the insurer is liable to pay the trustee agreed benefits in the amount of $147,055.00, together with interest.

96 The parties should have the opportunity to bring in agreed short minutes of the declarations and/or orders which are appropriate to give effect to these conclusions. Furthermore, failing agreement, the parties should have the opportunity to address me in relation to costs. Arrangements should be made with my associate by 22 June 2007 for the re-listing of this matter.

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