Shuetrim v FSS Trustee Corporation

[2015] NSWSC 464

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Shuetrim v FSS Trustee Corporation [2015] NSWSC 464
Hearing dates:	9-11 and 13 March 2015
Decision date:	24 April 2015
Jurisdiction:	Equity Division
Before:	Stevenson J
Decision:	Plaintiff entitled to total and permanent disability benefits
Catchwords:	CONTRACTS; INSURANCE; SUPERANNUATION – disability under superannuation scheme funded by group insurance policies – total and permanent disability definition dependent on opinion of insurer – insurers’ duty of good faith and fair dealing – whether such duty breached by failure of insurers to make decision until shortly before trial or by the decisions themselves – whether plaintiff totally and permanently disabled within meaning of the definitions in the policies
Legislation Cited:	First State Superannuation Act 1992 (NSW) Insurance Contracts Act 1984 (Cth)
Cases Cited:	Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238 Auspine Staff Superannuation Pty Ltd v Henderson [2006] FCA 1281 Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 Bannister v National Mutual Life Association of Australia Ltd and State Fire Commission (Supreme Court of Tasmania, Zeeman J, 9 October 1990, unrep) Banovic v United Super Pty Ltd [2014] NSWSC 1470 Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2015] NSWCA 104 Cavill Power Products Pty Ltd v Royle (1991) 42 IR 229 Chammas v Harwood Nominees (1993) 7 ANZ Ins Cas 61-175 Chapman v United Super Pty Ltd [2013] NSWSC 592 Constantinides v Du Pont Superannuation Fund Pty Ltd [2002] FCA 534 Dolton v State Authorities Superannuation Board [1995] NSWIRC 159 Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115 Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300 Folan v United Super Pty Ltd [2014] NSWSC 343 Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62 Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-751 Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57 Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; 13 ANZ Ins Cas 90-213 Hearne v Street [2008] HCA 36; 235 CLR 125 Lazarevic v United Super Pty Ltd [2014] NSWSC 96 Maciejewski v Telstra Super Pty Ltd [1999] NSWSC 341 McArthur v Mercantile Mutual Life Insurance Company Ltd [2001] QCA 317; [2002] 2 QdR 197 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55 Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Riley v National Mutual Life Association [1986] 4 ANZ Ins Cas 60-684 Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 Tonkin v Western Mining Corporation Ltd [1998] WASCA 101 Vidovic v Email Superannuation Pty Ltd (Supreme Court (New South Wales), Bryson J, 23 February 1995, unrep) Weber v Tiss Pty Ltd [2005] NSWSC 67 White v Board of Trustees [1997] 2 Qd R 659 Wyllie v National Mutual Life Association of Australasia [1997] 217 ALR 324
Texts Cited:	Phipson on Evidence (10th ed 1963, Sweet and Maxwell)
Category:	Principal judgment
Parties:	Benjamin Shuetrim (Plaintiff) FSS Trustee Corporation (First Defendant) MetLife Insurance Ltd (Second Defendant) TAL Life Ltd (Third Defendant)
Representation:	Counsel: M J Bleasel with A Coombes (Plaintiff) J G Duncan (Second Defendant) C Hanson (Third Defendant) Solicitors: Firths The Compensation Lawyers (Plaintiff) TurksLegal (Second Defendant) HWL Ebsworth Lawyers (Third Defendant)
File Number(s):	SC 2013/289552

Judgment

Introduction

1. The plaintiff, Mr Benjamin Shuetrim, was a member of the New South Wales Police Force from January 2007 until 22 November 2012, on which date he was medically discharged.

2. During that period, Mr Shuetrim was also a member of a superannuation fund known as the First State Superannuation Scheme (“the Fund”).

3. The first defendant, FSS Trustee Corporation (“the Trustee”), is the trustee of the Fund.

4. The Trustee effected insurance policies with the second and third defendants, MetLife Insurance Ltd and TAL Life Ltd, for the benefit of its members.

5. The TAL policy is known as the “Basic Policy” and is available to all members of the Fund. The MetLife policy is known as the “Police – Blue Ribbon Policy” and comprises additional cover for police officers.

6. Each of the policies provides cover for “Total and Permanent Disablement” (“TPD”). I shall use the acronym TPD as shorthand for the terms Total and Permanent Disablement, Total and Permanent Disability, and Totally and Permanently Disabled as the context requires.

7. Under the Basic Policy (with TAL), TPD is relevantly defined as follows:

“…the Insured Person having been absent from their Occupation through Illness or Injury for 3 consecutive months (where the Insured Person’s condition is unclear it is reasonable to defer assessment) and having provided proof to the satisfaction of us that the Insured Person has become Incapacitated to such an extent as to render them unlikely ever to engage in or work for reward in any occupation or work for which he or she is reasonably qualified by reason of education, training or experience.”

8. Under the Blue Ribbon Policy (with MetLife), TPD is relevantly defined as follows:

“…the Insured Member having been absent from their Occupation with the Employer through injury or illness for six consecutive months and having provided proof to our satisfaction that the Insured Member has become incapacitated to such an extent as to render the Insured Member unlikely ever to engage in any gainful profession, trade or occupation for which the Insured Member is reasonably qualified by reason of education, training or experience.”

9. The differences in substance between the TPD wordings are that, first, the TAL policy refers to the insured person being absent from his or her occupation for three consecutive months (whereas the MetLife policy refers to six consecutive months) and, second, the TAL policy has the parenthetical qualification following the reference to “3 consecutive months”. I discuss this further below. Otherwise it is common ground that although the wording in the definitions differs a little, the definitions are to the same effect.

10. On 15 February 2013 Mr Shuetrim lodged a claim for TPD benefits with the Trustee. He claims to suffer from an anxiety disorder and lateral epicondylitis, or “tennis elbow”, of the left elbow arising in the circumstances I set out below.

11. Mr Shuetrim and the Trustee have now settled. Mr Shuetrim withdrew his claims against the Trustee, and the Trustee has entered a submitting appearance.

12. Thus, the active respondents to Mr Shuetrim’s claim are TAL and MetLife, both of whom deny liability to indemnify Mr Shuetrim.

13. It is, however, agreed that if Mr Shuetrim is entitled to indemnity for TPD, the TPD amount under the Basic Policy is $207,216 and under the Blue Ribbon Policy is $597,287.

14. Mr Shuetrim commenced these proceedings against MetLife on 25 September 2013 and joined TAL as a defendant on 9 December 2013. On those dates, neither MetLife nor TAL had made any decision in respect of Mr Shuetrim’s claim.

15. TAL formally declined Mr Shuetrim’s claim on 17 December 2014 for reasons it gave that day. MetLife formally declined Mr Shuetrim’s claim on 23 January 2015, for reasons it gave on 10 February 2015.

16. Before me it was not in issue that Mr Shuetrim had standing to sue TAL and MetLife (see the observations of Ball J in Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115 at [54] set out at [33] below).

Mr Shuetrim’s claims

17. Mr Shuetrim seeks declarations that TAL and MetLife “constructively denied” his claims under the relevant policies by reason of not having made any decision until the dates referred to at [15]. Mr Shuetrim also seeks declarations that the decisions themselves are “void and of no effect”. Mr Shuetrim also seeks declarations that he satisfies the TPD definition in each policy and orders that TAL and MetLife pay him the amounts referred to in [13] above together with interest under s 57 of the Insurance Contracts Act 1984 (Cth). It is common ground that I should deal with any question of interest separately, and later.

General background

18. Mr Shuetrim was born in August 1976 and is now 38 years old.

19. Mr Shuetrim completed schooling at year 12 in 1994, obtaining a Higher School Certificate. He then commenced a Mechanics Trade Certificate as an apprentice in 1995 while working full time for Scuderia Veloce Motors. Mr Shuetrim completed the theoretical component of this course at several TAFEs and finally completed the course and obtained certification in 1997.

20. He then continued to work as a tradesman mechanic with Scuderia Veloce Motors and later Denlo Motors Volvo in Parramatta, Motorline Southside Volvo in Brisbane and finally Alto Volvo Motors in Gordon.

21. In a statement dated 5 June 2013, Mr Shuetrim gave the following unchallenged evidence concerning his time with the Police Force:

“11. I became a Probationary Constable in February 2007. I was stationed at Taree in NSW for one year. This involved either being scheduled at the station or on mobile patrol. ...On a daily basis I would need to physically restrain someone or breakup and restrain people from fighting and arguing. …I would say around 80% of the jobs that we were called out to on mobile patrol were that of domestic violence.

…

13. Around mid-2007 I felt the onset of stress and pressure in my work. I found the emergency callouts and red light runs that I would be undertaking and the necessity for instantaneous decision making whilst in violent confrontational situations was hard to deal with. I noticed one evening that I experienced heart palpitations. …I was taken to Manning Base Hospital. I was kept for overnight observation. I had about a week off work after this incident. I attended my GP at the time…I saw the Psychologist on four or five occasions. My GP ultimately prescribed me Arapax as an anti-anxiety medication.

14. At the time my GP indicated that I had a generalised anxiety disorder. I continued to take medication. I was able to manage my condition and work uninhibited subsequent to this experience. …

15. In April 2010 I transferred into the Middle Eastern Organised Crime Squad (‘MEOCS’) as a Uniformed Officer. …

16. On or around May 2011 my partner and I attended a call for back up from another mobile patrol unit. My partner and I were ultimately assaulted by those at the premises we were called. After this incident there was speculation that we went beyond our powers as the Officer we went to protect later claimed she did not fear for her safety. It was at this stage that I began to experience significant stress and anxiety about an investigation. I took approximately two weeks off work on sick leave in order to try and regather my composure and reduce the stress that I was experiencing. My GP at the time, Dr Chow in Auburn, certified that I should take two weeks off work.

17. I returned to work on normal full-time duties without any restriction or limitation after this time off work. I continued to take my anti-anxiety medication which by this point in time had now been changed to Cipramil.

18. On 21 September 2011 I was undertaking training as part of my deployment to the MEOCS. As a result I sustained significant injury to my left elbow. At the time I found I could not extend my arm properly and it was very painful. I thought it would reduce in pain the next day and went home assuming that a night’s rest would allow for some relief. The next morning I awoke and I could not extend my arm properly. The immense pain had remained. I was unable to attend work that day. Either the next day or the following day I attended my GP Dr West and was certified unfit for work for the following two weeks.

…

19. A claim was immediately made for workers compensation and I commenced receiving weekly payments. I have been receiving them to present.

…

21. I continued to be certified unfit for work until 15 October 2011. From 17 October 2011 I was certified fit for suitable duties only. I was initially certified for eight hours a day five days per week on modified duties however I tried this for one to two days and it was too much for me to handle given my left elbow pain and immobility. I consulted Dr West and I was then certified fit for four hours a day five days per week several days after. This remained unchanged until around 21 November 2011.

22. During this period, I was completely office bound and non-operational. I could not physically attend to any police work on the road such as investigations or search warrants. …During this time I worked on telephone intercepts at the station. …

23. On 21 November 2011, I was called to a meeting with work. I felt ambushed in this meeting and subsequently started to experience significant stress and anxiety.”

22. 21 November 2011 was Mr Shuetrim’s last day at work and, as I have mentioned, he was medically discharged from the Police Force a year later, on 22 November 2012.

23. In his statement, Mr Shuetrim also dealt with a business that he had established called “Diesel Imports” as follows:

“12. Around this time, early 2007, I owned a diesel vehicle. I had the idea to research into alternative fuel sources. I found some information about an additive that could be mixed with vegetable oil as a partial replacement for diesel fuel. For this system to work I required a particular additive from the US. I tried to purchase the additive for myself. The US Company only exported commercial quantities. I therefore established a business called Diesel Imports, or a name to that effect, and purchased around 500kg of the product. In my research of various diesel products and additives I located another person in Australia who also distributed diesel additives. We had an agreement that he would place my product brochure in his mail-outs for a small commission. I also created a website for people to order the additive. When people would e-mail me an order, I would send them the product through the post. I kept the stock in my garage. It took me around one year to sell all the stock. I did not make any further orders after this point. I probably spent around two hours per day, checking my e-mails, responding to enquiries and sending stock through the post.”

The Trust Deed and the insurance policies

24. The Fund was established under the First State Superannuation Act 1992 (NSW). Pursuant to s 13(1) of that Act, on 19 February 1999, a trust deed (“the Trust Deed”) was executed to make provision for and with respect to the workings of the Fund.

25. By a Deed of Variation effective on 1 July 2012, the previous provisions of the Trust Deed were deleted and replaced by the provisions of the Deed of Variation and the rules annexed to the Deed of Variation (“the Rules”).

26. The Rules provide that the Trustee might acquire insurance policies “to provide insured benefits for members” and that:

“The insured benefit of a member is:

(a) limited to the extent that the Trustee is able to effect cover under an insurance policy;

(b) only payable to the extent that the Trustee receives payment from the insurer under an insurance policy.”

27. My attention was not drawn to any other of the Rules. No counsel suggested there was any provision in the Rules, or in the Deed of Variation, which was relevant to the proper construction of the TPD definitions in the TAL and MetLife policies.

Two stage enquiry

28. It was common ground before me that there are two distinct stages of the enquiry with which I am concerned.

29. The first is whether the failure of TAL and MetLife to make a decision until 17 December 2014 (in the case of TAL) and 23 January 2015 with reasons given on 10 February 2015 (in the case of MetLife), or the decisions themselves, bespeak a breach by the insurers of their duty to Mr Shuetrim to act in good faith and fair dealing (perhaps more accurately described as their duty to act with utmost good faith; see s 13 of the Insurance Contracts Act and Basten JA in Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2015] NSWCA 104 at [4]). At this stage of the enquiry, I am not called on to express any opinion as to whether Mr Shuetrim was in fact TPD at the relevant time, and am concerned only with the question of alleged breach of the insurer’s duty.

30. If my conclusion is that the insurers have not acted in breach of their duty of good faith and fair dealing (whether by failing to make a decision, or by the making of the decisions), that is the end of the matter.

31. The second stage, only reached if the answer to the question posed in the first stage is “yes”, is whether, in my opinion, Mr Shuetrim is in fact TPD.

32. Thus, in Hannover Life v Sayseng [2005] NSWCA 214, Santow JA, with whom Spigelman CJ and Tobias JA agreed, cited with approval the summary of principles adopted by the trial judge (Bryson J) relevant to the “first stage” of enquiry (at [36] and [50]). Bryson J, in turn, derived these principles from the observations of McLelland J in Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 at 77,536-7 as follows:

1. there is an implied obligation on the insurer to consider and determine whether it should form an opinion on the matter which was a condition of its own liability;

2. that obligation involves consideration and determination of the correct question;

3. the insurer is under a duty of good faith and fair dealing which requires it to have due regard for the interests of both the insured and the trustee;

4. the insurer is also obliged to act reasonably in considering and determining its opinion;

5. if the view taken by the insurer can be shown to have been unreasonable on the material then before it, its decision can be “successfully attacked” (the first stage of the enquiry);

6. if (and I would add, only if) the insurer’s decision is “successfully attacked”, the matter upon which its opinion was required becomes one for determination by the Court (the second stage of the enquiry).

33. As to the first stage of the enquiry, Young AJ put the matter this way in Chapman v United Super Pty Ltd [2013] NSWSC 592 at [53]:

“…the onus is on the plaintiff to establish that the Insurer's or Trustee's decision on the material before them to deny the plaintiff indemnity was (a) so unreasonable in all the circumstances that the Court is required to intervene, see Tonkin v Western Mining Corporation Ltd [1998] WASCA 101; or (b) that either the Trustee or the Insurer breached some duty to the plaintiff. It is not sufficient for the Court to say that had it been the initial decision maker, or if it were an appeal court hearing the matter de novo, it would have come to a different decision. The Court must focus on whether the decision of the Insurer or the Trustee or both was so unreasonable that a reasonable person in that situation could not have made it.”

34. Ball J summarised the matter in Erzurumlu at [54] as follows:

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

35. In Birdsall v Motor Trades Association, Basten JA has very recently expressed the opinion that the matter I have set out at [32(f)] above (and thus at [31]) concerning the second stage of the enquiry, and the line of authority leading to Santow JA’s evident acceptance of it in Hannover v Sayseng, “may need to be reconsidered” (at [22] to [28]). Basten JA referred to the doubts about that question expressed by McPherson JA in McArthur v Mercantile Mutual Life Insurance Co Ltd [2001] QCA 317; [2002] 2 QdR 197 (especially at [19]). However, it seems to me that I am bound to follow that line of authority. No counsel suggested otherwise. And in Birdsall, Meagher JA, with whom Gleeson JA agreed, did not suggest it should not be followed, or seemingly doubt its correctness (at [50] and [58]); although referring at [58] to McPherson JA’s “thoughtful analysis” in McArthur v Mercantile Mutual.

The test for TPD

36. There are two limbs to the TPD definition in the TAL and MetLife policies. The first requires that Mr Shuetrim be absent from his occupation through injury or illness for three consecutive months in the case of TAL and six consecutive months in the case of MetLife. There is no dispute about those matters in this case.

37. The second limb is whether Mr Shuetrim has become incapacitated to such an extent as to render him unlikely ever to “engage in or work for reward in any occupation” (in the TAL policy) or to “engage in any gainful profession, trade or occupation” (in the MetLife policy) for which he is “reasonably qualified by reason of education, training or experience”. As I have mentioned, it is common ground that the difference in wording in the definitions is not material.

38. Brereton J considered indistinguishable wording in Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 and said at [76]:

“That phrase can be distilled into the following components.

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

(2) ever to engage (meaning on a full-time regular basis) [Riley v National Mutual Life Association [1986] 4 ANZ Ins Cas 60-684, 74063; Chammas [v Harwood Nominees (1993) 7 ANZIC 61-175]; Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55, cf Wyllie v National Mutual Life Association of Australasia [1997] 217 ALR 324; Sayseng v Kellogg Superannuation [[2003] NSWSC 945]]

(3) in any occupation or work (meaning a recognised occupation, not a special light duties job for injured workers) [Cavill Power [Products Pty Ltd] v Royle [(1991) 42 IR 229]; Dolton v State Authority Superannuation Board [1995] NSWIRC 159 at [11.1]] and being work which he is likely to be able to obtain [Chammas, Nile v Club Superannuation, [64]];

(4) for which he is reasonably qualified by education, training or experience (as at the date of assessment) [Giles [v National Mutual Life Association of Australasia Limited (1986) 4 ANZ Ins Cas 60-751], Fernance [v Wreckair Pty Ltd (No 2) (1992) 43 IR 300])”.

39. Recently, Hall J also considered indistinguishable wording in Banovic v United Super Pty Ltd [2014] NSWSC 1470. His Honour cited, with approval, Brereton J’s observations in Halloran v Harwood Nominees and added at [76] to [79]:

“Since the decision in Halloran v Harwood Nominees Pty Ltd, the reference in (2) in the above extract should include regular part-time work in addition to full-time work on a regular basis: see Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57 at [54] (per Bathurst CJ). This must, however, be regular work and not casual: Chapman v United Super Pty Ltd [2013] NSWSC 592 at [28].

In determining the physical fitness of a person to do a particular type or class of work the issue must be examined in a realistic and not a mere theoretical way. In Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55, Brownie AJ at [64] observed:

‘As Hodgson J pointed out in Channas...one must consider not just the theory that someone is physically fit to do particular work, but also the actual likelihood of that person obtaining employment, meaning full-time employment (or, I take it, substantially full-time employment, generally comparable with the plaintiff's employment before his 1996 injury) that was reasonably open to the plaintiff. Given the plaintiff's education, training and experience, the prospects of his actually obtaining employment in any of the jobs suggested by Dr Innes-Brown were remote, and perhaps non-existent.’

In Lazarevic [v United Super Pty Limited [2014] NSWSC 96], Hallen J observed at [108]-[109]:

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

In Baker v Local Government Superannuation SchemePty Ltd [[2007] NSWSC 1173], McDougall J expressed a similar view, concluding, at [58], the ‘Court is required to take a realistic and common-sense approach. There must be a real prospect, and not merely some theoretical possibility, that the work will be available. It should not be work in some special light duties job created for the injured worker.’

In Diosdado Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583, Nicholas J observed at [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 (ie 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’.”

40. To adopt the language used by Hall J in Banovic, it is incumbent on the insurers to consider relevant information and to make reasonable enquiries in order to ascertain whether there existed work or employment which Mr Shuetrim was reasonably capable of performing having regard to the nature and extent of his impairment, and whether such work was available (at [129], citing Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238 per Nettle JA at [66], Redlich JA and Davies AJA agreeing).

41. The range of work open to Mr Shuetrim is, the evidence in this case reveals, likely to be limited by his post-accident disabilities and the associated or consequential difficulty in competing in the open employment market. Thus, taking all these matters into account, the question in the present case is how likely is it that Mr Shuetrim would be able to find work or an occupation for which he is suited by his education, training or experience, taking into account all the limitations and practical realities of his post-accident situation (adopting the language of Hall J in Banovic at [132] and [133]).

42. I am concerned with the question of whether, on the evidence, it is probable that Mr Shuetrim would actually obtain work for reward for which he is qualified by education, training or experience (and not merely “special light duties”) and whether his condition has disabled him from doing what he is qualified to do. I must take a realistic and common sense approach to the matter (for example see Nicholas J in Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 at [64]).

Onus

43. There is, of course, a distinction to be drawn between the “legal onus” on the one hand, that is “the burden of proof as a matter of law and pleading…of establishing a case”, and the “evidentiary onus” of sustaining “the burden of proof in the sense of introducing evidence” on the other. The former “is always stable” but the latter “may shift constantly” (Purkess v Crittenden [1965] HCA 34; 114 CLR 164 at 167 to 168 per Barwick CJ, Kitto and Taylor JJ, citing Phipson on Evidence (10th ed 1963, Sweet and Maxwell) at [92]).

44. The TPD definitions in the policies require that Mr Shuetrim provide “proof” to the satisfaction of TAL and MetLife that he is relevantly incapacitated.

45. It was thus for Mr Shuetrim to place before TAL and MetLife material which would satisfy them that Mr Shuetrim fell within the TPD definition.

46. In that sense, there was an evidentiary onus on Mr Shuetrim (for example see Hallen J in Lazarevic at [159]).

47. But prior to the commencement of proceedings, no question of legal onus arose. As Young AJ said in Chapman v United Super at [70]:

“As to the onus of proof, the better view would seem to me that no question of onus is relevant when considering the Trustee's decision. As Bryson J said in Vidovic v Email Superannuation Pty Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 23 February 1995) at 13:

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

48. However, as Mr Bleasel, who appeared with Mr Coombes for Mr Shuetrim, accepted, once proceedings were commenced Mr Shuetrim bore the onus at both stages of the enquiry: first to show that the insurers had acted in breach of their obligations of good faith and fair dealing (by not making a decision until December 2014/January 2015, or by the making of those decisions); and, second, if those matters were made out, to show that he was in fact TPD at the relevant time.

49. Nonetheless, an evidentiary onus may remain on the insurers to produce some material to show that there are specific occupations for which the applicant for TPD benefits is likely suited.

50. Thus, in the particular context of definitions such as the TPD definitions in the policies in this case, Marks J said in Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62:

“In circumstances where an insured member asserts on the basis of supporting medical and other evidence that he or she is unable to follow any of the occupations described in the definition, then it falls to the party seeking to rebut the claim to adduce evidence designed to demonstrate that there is another occupation to which the claimant is reasonably suited… In my opinion, it is not sufficient to make a bald assertion, or even to adduce ‘expert evidence’ to the effect that a claimant is able to work… [I]t is necessary to demonstrate that there are specific occupations available to a claimant… There needs to be some evidence about the circumstances of the employment, including the nature and conditions under which work is to be performed and whether there are any specific qualifications or requirements associated with the particular occupation. Mere ability to undertake some or all tasks in an intellectual sense may not determine that there is an ability, …by reference to any medical or other condition to perform the work associated with that particular occupation.” (at [32])

What are the relevant dates?

51. It is common ground that the question of whether Mr Shuetrim satisfied the definition of TPD in either policy is a “prognostic” decision. The definition is concerned with “a present unlikelihood of something occurring in the future” (per Jessup J in Auspine Staff Superannuation Pty Ltd v Henderson [2006] FCA 1281 at [64]).

52. The question arises as to whether the definition requires that TAL or MetLife make a decision at a particular time.

53. Mr Bleasel described this as the “relevant time for the prognostic decision”.

54. Mr Hanson, who appeared for TAL, submitted that, in the case of the TAL policy, the “relevant time” was at the end of the “3 consecutive months” during which the insured person had been absent from his or her occupation “through Illness or Injury”, unless the parenthetical wording in the definition was enlivened by the insured person’s condition being unclear such as to make it “reasonable to defer assessment”. TAL’s case in these proceedings is that the “relevant time” in these circumstances was July 2012, being a time after the “3 consecutive months” during which Mr Shuetrim had been absent from work through illness or injury (the period from his last day at work on 21 November 2011 to 21 February 2012) together with the further period to July 2012 during which, according to TAL’s case, it was “reasonable to defer assessment” of Mr Shuetrim’s position.

55. Mr Duncan, who appeared for MetLife, submitted that, in the case of the MetLife policy, the relevant date was at the end of the “6 consecutive months” period referred to in the TPD definition during which Mr Shuetrim had been absent from his occupation through injury or illness; that is, May 2012, which was six months after 21 November 2011.

56. On the other hand, Mr Bleasel contended that the “3 consecutive months” and the “6 consecutive months” in the TAL and MetLife policies represent no more than the earliest date upon which the relevant assessment could be made. Mr Bleasel submitted that the relevant date for each policy is the date on which the insurers actually made their decision (or must be deemed to have made a decision: see the discussion on “constructive denial” below at [150] to [197]).

57. During submissions, my attention was directed to a number of TPD cases where the question of the relevant time for assessment was considered.

58. Differing views have been expressed in those cases as to the relevant date. Very often, those views have been informed by provisions in the relevant trust deed or governing regulations which cast light on the question: for example Bannister v National Mutual Life Association of Australia Ltd and State Fire Commission (Supreme Court of Tasmania, Zeeman J, 9 October 1990, unrep); Maciejewski v Telstra Super Pty Ltd [1999] NSWSC 341 per Windeyer J at [7] to [12]; Constantinides v Du Pont Superannuation Fund Pty Ltd [2002] FCA 534 per Marshall J).

59. As I have said, no counsel suggested that any provision of the Deed of Variation or of the Rules touches on the question of the relevant date. Accordingly, although decisions such as those referred to at [58] provide some guidance, the question of the relevant date for assessment in this case must turn on the proper construction of the insurance policies themselves, and in particular of the TPD definitions in the policies.

60. Neither of the TPD definitions states, in terms, at what date the insurer must assess whether the insured person is incapacitated to such an extent as to satisfy the TPD definition.

61. However, the parenthetical expression in the TAL Policy to which I have referred above speaks of a circumstance “where the Insured Person’s condition is unclear” and “it is reasonable to defer assessment”. The language is awkward. But its effect is, in my opinion, to reserve to the insurer the right to “defer assessment” in a circumstance where “the Insured Person’s condition is unclear” if it is “reasonable” to do so.

62. In my opinion, such “assessment” must be the assessment by the insurer of whether the insured person has provided proof to its satisfaction that the insured person has become relevantly incapacitated.

63. The deferment of that assessment must be from the end of the “3 consecutive months” during which the insured person has been “absent from their Occupation through Illness or Injury”; there is no other time identified in the TPD definition from which such a deferment could date.

64. That suggests that, but for a circumstance warranting a deferment of the assessment where the insured person’s condition is unclear, such assessment is to take place at the end of that three month period.

65. In my opinion, that is the proper construction of the TAL TPD definition.

66. The MetLife TPD definition does not contain the parenthetical expression which appears in the TAL TPD definition. However, my opinion is that it should also be construed so as to require consideration by the insurer of the insured person’s capacity, or lack of it, at the expiry of the insured person’s absence from their occupation for the period referred to (six consecutive months, rather than three months as in the TAL policy).

67. An insured person cannot be TPD within the meaning of the MetLife definition unless he or she is absent from his or her occupation through illness or injury for six consecutive months. It is, in my opinion, implicit in the definition that such incapacity must arise from the injury or illness that caused the six month absence from work. The definition thus requires consideration of whether the incapacity results from that injury or illness. The TPD definition thus directs attention to the insured person’s capacity, or lack of it, at the end of that period. That is, in my opinion, the time at which the insurer must consider whether the insured person is incapacitated in the manner called for by the definition. Otherwise, it would be open to an insured person to seek to satisfy the insurer, at any time after having been absent from work for six months, and perhaps many years later, that he or she was relevantly incapacitated by reason of the injury or illness that led to his or her absence from work.

68. Brereton J came to the same conclusion when considering the indistinguishable TPD definition in Halloran v Harwood Nominees.

69. Thus, Brereton J said at [33]:

“As I have said, the question for the insurer was whether Mr Halloran was totally and permanently disabled within the meaning of the insurance policy. In my view, that was an opinion which had to be formed as at the date six months from when he last worked for CSR within the definition “having been absent from employment with the Company…for six consecutive months”. In Giles v National Mutual Life Association of Australasia Limited (1986) 4 ANZ Ins Cas 60-751, the insurance policy contained a similar provision, to the effect that the insured, a chiropractor, was prevented “throughout the immediately preceding continuous period of six months” from engaging in his usual profession, business, occupation or any similar occupation. He ceased to work in August 1983. Pigeon J in the Supreme Court of Western Australia said at (74,529):

‘The cause of action of Mr Giles’ claim if it arises at all arose in February 1984. If all stipulations are proved the moneys under the policy would become payable at that date. I consider basically that I must look at that date to see if the cause of action was then established. I am, however, doing that at this point of time so I consider it is open to me to take into account certain events that have occurred subsequently. If, for example, it was a proven fact that the life insured did obtain a position that earned a living then that would be sufficient to indicate he is not disabled for the remainder of his life’.” [

70. Brereton J’s decision was cited with approval by Bathurst CJ, with whom Macfarlan, Meagher and Hoeben JJA and Tobias AJA agreed, in Hannover Life v Dargan at [41].

71. Ball J came to the same conclusion in Erzurumlu in relation to a similar TPD definition.

72. At [55] his Honour said:

Although it is an issue that is ultimately to be determined by the terms of the trust deed and policy, generally the question whether a member suffers from total and permanent disablement is to be determined at the time and by reference to the facts that exist at the time the member first suffers from total and permanent disablement in accordance with the policy. It is at that time, and by reference to those facts, that the trustee and insurer are required to consider the question whether the member suffers from total and permanent disablement. There is a question whether that is when the member ceased work or when the qualifying period before any benefit is payable expires: compare Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 at [33] per Brereton J (who preferred the latter approach) and Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 where Nicholas J appears to have preferred the former approach. The parties accept that nothing turns on which approach is adopted in this case. However, in my opinion, the preferable approach is the one adopted by Brereton J.”

73. Ball J referred to the decision of Nicholas J in Sayseng [2007] NSWSC 583. I do not myself read Nicholas J’s judgment as expressing the opinion attributed to him by Ball J. In that case, the insurer submitted that Mr Sayseng had failed to prove that “at any relevant time” he was TPD (at [60]). His Honour concluded that, contrary to that submission, Mr Sayseng was TPD “at all times relevant to his claim” (at [74]).

74. Further, in Folan v United Super Pty Ltd [2014] NSWSC 343, Nicholas AJ (as his Honour then was) considered a TPD definition indistinguishable from that in the MetLife policy. Following Brereton J in Halloran v Harwood Nominees and Ball J in Erzurumlu, his Honour concluded that “[t]he time for assessment is upon the expiration of the six month qualifying period” (at [66]).

75. For what it matters, this was also the view advocated by Mr Shuetrim’s solicitors, Firths, in the course of correspondence with MetLife’s insurers. Thus, on 13 May 2014 Firths stated:

“You will appreciate that it is the insured’s medical condition and evidence six months after ceasing work that is relevant…”.

76. The determination of the “relevant time for the prognostic decision” can be critical in cases where there has been some intervening fact or circumstance which warrants a fresh assessment of the insured person’s condition; for example, later retraining or employment.

77. In this case, as Mr Bleasel submits, there is no evidence of any such intervening fact or circumstance.

78. However, the relevant date is itself relevant to a consideration of the reasonableness of the assessment ultimately made by both TAL and MetLife of whether or not Mr Shuetrim was TPD.

Relevance of medical reports created after the relevant date

79. The focus of the enquiry is whether is Mr Shuetrim was TPD at the relevant time.

80. There is in evidence before me medical opinion arising from medical consultations that occurred around and prior to the relevant dates.

81. There is also in evidence before me such material coming into existence after the relevant time. Those reports are admissible and relevant “provided that they are pertinent to the determination of [Mr Shuetrim’s] condition at the relevant time” (per Muir J, with whom McMurdo P agreed in McArthur v Mercantile Mutual at [74]).

82. In this case, there is no evidence of “any fact or circumstance intervening between any relevant earlier time and the date of the opinions which would deprive them of probative value in respect of [Mr Shuetrim’s] condition at that earlier time” (McArthur v Mercantile Mutual at [78]; and see [77] above). Therefore, much of the later medical material in this case is “pertinent” to the relevant questions.

What was Mr Shuetrim’s medical condition on the relevant dates (i.e. between May and July 2012)?

Elbow injury

83. It is common ground that, as a result of the incident on 21 September 2011, Mr Shuetrim suffered a lateral epicondylitis (or “tennis elbow”) condition.

84. Immediately after the incident Mr Shuetrim had pain killing injections which gave only short term relief.

85. He consulted Dr Daniel Biggs, an orthopaedic surgeon, on 8 December 2011. In his report that day Dr Biggs said:

“Mr Shuetrim gives a history of developing left lateral elbow pain in the course of physical training exercise on 21 September 2011. He gives no prior history of left elbow injury. Treatment to date has included one ultrasound guided left elbow corticosteroid injection which was of temporary relief only.

Examination of the left elbow today reveals localised epicondylar tenderness, exquisite pain and weakness on resisted wrist dorsiflexion, maintained range of left elbow motion and no sign of underlying instability.

I note that ultrasound reveals a common extensor origin tendinopathy.

I re-injected the left elbow lateral epicondyle with local anaesthetic and corticosteroid. The effect of the local anaesthetic was to give immediate relief.

I have advised Mr Shuetrim to avoid any repetitive or heavy lifting using the left arm for a minimum of a further eight weeks.

He will be reviewed at that time.” [Emphasis in original]

86. Mr Shuetrim saw Dr Biggs again on 2 February 2012. Dr Biggs reported that Mr Shuetrim “has had complete symptom recurrence” and referred him for an MRI scan.

87. Following the MRI scan, Mr Shuetrim saw Dr Biggs again on 16 February 2012 on which occasion Dr Biggs recommended “surgery in the form of left elbow arthroscopy and lateral release”.

88. Dr Biggs performed the elbow arthroscopy and lateral release on 9 May 2012 and reported that there were no complications.

89. Dr Biggs reviewed Mr Shuetrim on 16 May 2012 and 27 June 2012 and noted that Mr Shuetrim was “progressing satisfactorily” but that:

1. Mr Shuetrim had some residual antero-lateral left elbow discomfort, particularly with his elbow extended;

2. ongoing graduated physiotherapy was indicated; and

3. Mr Shuetrim remained unfit for lifting anything greater than 3.5kg for a further two months.

90. On 17 July 2012, Dr Thaddeus West reported to Mr Shuetrim’s workers compensation insurer:

“It is my opinion, that following his operation which was successful and that [sic] he was fit to resume normal duties – possibly graded at first

I did write @ [sic: at] one stage he had anxiety when he over-heard a conversation about him from police administration but this should have ceased when the police offered him many opportunities to change venues at work, hours, conditions etc. It may be that he has previous stress anxieties that are unrelated to this incident – he has a psychologist for these.

I am of the opinion that I have completed my task in getting him back to work free of his original injury.”

91. Dr West had, until shortly before his report, been Mr Shuetrim’s general practitioner. By 4 July 2012, Dr Louise Jones had become Mr Shuetrim’s GP. Nonetheless, and understandably, the insurers placed much weight on Dr West’s letter. Indeed, as I set out below, it was the only report that TAL took into account concerning Mr Shuetrim’s elbow condition when making its decision on 17 December 2014.

92. In an Attending Doctor’s Statement dated 11 September 2012, Dr Jones referred to a “resolving elbow injury”. On 26 January 2013, Dr Jones recorded that Mr Shuetrim had ceased physiotherapy and that there was “no improvement”.

93. Mr Shuetrim was referred by MetLife to another orthopaedic surgeon, Dr Roger Pillemer. On 27 May 2013, Dr Pillemer recorded that Mr Shuetrim told him that he did not feel that Dr Biggs’s 9 May 2012 surgery had helped him at all. Dr Pillemer further recorded that Mr Shuetrim had “residual signs and symptoms” of lateral epicondylitis.

94. Dr Pillemer opined that:

“The vast majority of people with lateral epicondylitis do improve with time and often this takes many many months. I see no reason why Mr Shuetrim should not show improvement in the future.

…

People very rarely remain with any residual impairment and disability following lateral epicondylitis, even in the presence of failed surgery.”

95. The evidence suggests that Dr Pillemer’s optimism was not, in this case, justified. There is no evidence before me that Mr Shuetrim’s lateral epicondylitis has improved.

96. Thereafter Mr Shuetrim saw one further orthopaedic surgeon, Dr Robert Breit on 15 January 2014, as well as two general surgeons, Dr W G D Patrick on 25 June 2013 and Dr S K Cyril Wong on 1 July 2014.

97. Each of those doctors expressed differing views as to the extent to which Mr Shuetrim had lost the effective function of his left arm. Dr Patrick opined that Mr Shuetrim had lost 20 per cent effective function. Dr Breit thought there to be “1% upper extremity impairment”. Dr Wong found there to be significant restriction in flexion, mild restriction in extension and pronation at the left elbow, with a 13 per cent upper extremity impairment.

98. Dr Breit opined that Mr Shuetrim’s impairment was permanent.

Anxiety condition

99. The weight of the medical evidence is that Mr Shuetrim had an anxiety and adjustment disorder at the relevant time. The evidence suggests that, to a large extent, this disorder was brought about by Mr Shuetrim’s experience whilst in the Police Force, and in particular by reason of his treatment by his peers within the Police Force immediately following his elbow injury.

100. Mr Shuetrim consulted Ms Louise Walsh, a psychotherapist and counsellor who on 17 January 2012 diagnosed Mr Shuetrim as suffering from an anxiety and adjustment disorder.

101. On 9 March 2012 Ms Walsh recommended that Mr Shuetrim see a consulting psychiatrist, Dr Michael Calthorpe, “[g]iven the severity of his symptoms and the level of distress Mr Shuetrim experiences when planning his return to work” as a police officer. Ms Walsh later opined that Mr Shuetrim’s adjustment disorder was secondary to his elbow injury and “workplace grievances”. Ms Walsh recorded that those grievances resulted from an “incident in 2011 involving peers where Mr Shuetrim felt unsupported inhibiting his trust in his employer.”

102. On 23 April 2012, Ms Walsh referred Mr Shuetrim to Dr Calthorpe. In her letter to Dr Calthorpe, Ms Walsh said:

“Ben has attended weekly psycho education sessions to manage his anxiety and to date we have worked together for 12 sessions. Ben is making gradual progress in managing his daily mood through CBT [cognitive behaviour therapy] strategies and arousal reduction strategies with a focus on somatic re regulation of anxiety symptoms. A significant factor contributing to Mr. Ben Shuetrim’s mood is the uncertainty and unresolved management of his elbow injury.”

103. Dr Calthorpe saw Mr Shuetrim on 28 May 2012 and concluded that Mr Shuetrim was suffering from “a severe stress reaction associated with work experiences” but concluded that, overall, the circumstances pointed to “eventual rehabilitation and success”.

104. Thus Dr Calthorpe stated:

“I have not been shown any letters or reports other than your letter of referral and I have not spoken to any third party. The following is therefore, almost entirely based on information provided by Ben today.

…

Conclusions:

1.    Mr Shuetrim is suffering from a severe stress reaction associated with work experiences.

2.    The problematic work experiences were:

(i)   Being repeatedly shamed and humiliated for being physically injured and non-operational.

(ii)   Being summoned to a meeting with three superiors where he [w]as intimidated and threatened, without warning, without support and without due process. In psychological terms that meeting mirrored in significant ways his earlier experience of being physically injured.

3.   Mr Shuetrim has, since leaving work, continued to suffer a range of anxiety symptoms which have proved refractory to treatment and which are severely exacerbated by even mild re-exposure to his work environment.

4.   It is reasonable to doubt that Mr Shuetrim will ever be able to return to work at his previous posting within the Police Service. He may not be able to return to any posting within the Police Service.

5.    Mr Shuetrim joined the Police Service for idealistic reasons. His idealism has soured and he finds it hard to continue to believe in the values that originally drew him to the Police Service and fuelled him through his first 4 years. Further, having been severely ‘ambushed’ and injured twice, in a room, by his own colleagues, he naturally finds it very hard to trust the Service. Lastly he feels deeply betrayed. Having performed multiple highly dangerous tasks on behalf of the Service and in support of his colleagues, his experience is now that of being scape-goated and abandoned.

6.   Putting ‘(1)’ to ‘(5)’ above together, I think it highly unlikely that Mr Shuetrim will be able to return to active service with the Police. My view is that the only intervention that would allow occupational rehabilitation within the Police Service, and hence resolution of his intense, disabling anxiety, would be a radical transformation of the relationship between Mr Shuetrim and the Police Service. I think that is unlikely to happen. More likely, the current dynamics will prevail and possibly amplify.

Ben Shuetrim

7.   In the meantime the most that treatment can achieve is to support and sustain Mr Shuetrim through a long period of stress, anxiety and difficult adjustment. His personal, martial and work history plus his considerable personal attributes, point to eventual restablisation and success, provided he receives appropriate professional assistance and support from family and friends.”

105. A month later, Mr Shuetrim was referred by his workers compensation insurer to another consulting psychiatrist, Dr Graham George. Dr George saw Mr Shuetrim on 28 June 2012.

106. Dr George diagnosed Mr Shuetrim as suffering from a “Generalised Anxiety Disorder incorporating panic phenomena” and “Mild Major Depression with Anxious Mood”.

107. Dr George opined that:

“He will need to stay on a therapeutic amount of medication once he has remissions of symptoms. He will need to remain on medication for 12 months if not longer.

…

He will need to continue with a psychologist on a weekly basis until he has good remission of symptoms and then he can slowly be weaned down off therapy. I would imagine he will be seeing a psychologist through to the end of this year.

…

If he does not get good remission of symptoms with an increase in medication, I strongly recommend referral to a psychiatrist.”

108. On 11 September 2012, Dr Jones reported that Mr Shuetrim still suffered “anxiety attacks [and] social withdrawal” and was improving but “slowly”.

109. On 26 January 2013, Dr Jones reported that Mr Shuetrim had “reduced panic attacks, mood stable on medication”.

110. Until May 2013 Mr Shuetrim was also regularly seeing his psychotherapist, Ms Walsh. His last appointment with Ms Walsh was on 16 May 2013. Ms Walsh stated that at that time Mr Shuetrim “was reportedly feeling well enough to self-care and maintain his progress”. Later, on 8 July 2014, Mr Shuetrim told Ms Julie Strinic, a psychologist who compiled a “Vocational Assessment Report” to which I refer below, that he found Ms Walsh too “directive” rather than “supportive” of him.

111. On 22 May 2013 MetLife arranged for Mr Shuetrim to see a forensic psychiatrist, Dr Adam Martin.

112. Dr Martin also found Mr Shuetrim to have a generalised anxiety disorder and a “Panic Disorder with agoraphobia”.

Expressions of medical and other opinion as to Mr Shuetrim’s future working capacity

113. The weight of the evidence also establishes that, by reason of his elbow injury, Mr Shuetrim is not able to return to his previous occupations as either a mechanic or a police officer.

114. Dr Calthorpe’s opinion was that the “severe stress reaction” that Mr Shuetrim had suffered “associated with work experiences” also made it unlikely that Mr Shuetrim could return to the Police Force.

115. Dr Calthorpe did add that Mr Shuetrim’s “personal, marital and work history” and his “considerable personal attributes” pointed to “eventual restabilisation and success” provided that he received “appropriate professional assistance and support from family and friends”.

116. Dr George was also clear that it was unlikely that Mr Shuetrim could return to the Police Force. Dr George thought that Mr Shuetrim had “high trait anxiety”, that his “policing duties have then put him in situations which precipitate anxiety” and that his anxiety disorder was “substantially related to his employment” as a police officer.

117. The extracts I set out above at [107] from Dr George’s report suggest he thought there was a possibility of “remission”. However, Dr George was clear that Mr Shuetrim’s prognosis for return to work with the Police Force in either an operational or non-operational capacity was extremely poor.

118. As stated above, on 17 July 2012 Mr Shuetrim’s former GP, Dr West, expressed a very different opinion, namely that Mr Shuetrim was “fit to resume normal duties” and that “I have completed my task in getting him back to work free of his original injury” (see [90] above).

119. Dr West’s optimism is not reflected in any other evidence before me. It was, I understand, common ground before me that, despite Dr West’s opinion, Mr Shuetrim was not at the relevant times, and is not now, fit to return to the Police Force.

120. On 26 January 2013, Dr Jones expressed that view that Mr Shuetrim could not return to the Police Force or to work as a mechanic, and that his future employment in other fields was “still unknown”.

121. Dr Pillemer’s opinion, based upon his assessment of Mr Shuetrim on 27 May 2013, was that although Mr Shuetrim was not fit to resume work as a police officer he was fit for a “wide range of employment opportunities and activities that do not place excessive stress on his left elbow region”.

122. Dr Martin agreed that Mr Shuetrim was not fit for work as a police officer or mechanic but that “he may be best suited to a job in some form of gardening or farming capacity” and suggested that “vocational assessment may be helpful”.

123. Dr Patrick accepted that Mr Shuetrim could not do police work but opined that he “might possibly be able to do some light horticultural type work, working largely ‘one armed’”.

124. Dr Breit agreed that it was unlikely Mr Shuetrim could return to his “pre-injury duties” (that is, as a police officer) and said that Mr Shuetrim should not be placed in a position of “potential confrontation where he may be required to protect himself from others”. Dr Breit said that “from the musculoskeletal viewpoint” Mr Shuetrim could apply for sedentary work.

125. Thus, although the weight of medical opinion at May to June 2012 (the relevant times) and later was that Mr Shuetrim was not fit to resume to return to the Police Force or to his former occupation as a mechanic, some optimism was expressed by the doctors as to Mr Shuetrim’s ability to do light horticultural or sedentary work.

Vocational assessment

126. On 8 July 2014, in the circumstances I discuss below, Mr Shuetrim attended on a psychologist, Ms Julie Strinic, at an organisation called Advanced Personnel Management (“APM”). Based on her interview with Mr Shuetrim, Ms Strinic produced a “Vocational Assessment Report” dated 24 July 2014.

127. Ms Strinic’s report of 24 July 2014 stated that:

“Mr Shuetrim remained calm and open to discussing alternative vocational options. He reported a desire to return to work, however he remained adamant that due to his psychological and physical limitations, poor short-term memory, reduced concentration and limitations with regards to lifting with his left hand, that he…would be unable to sustain employment.”

128. Ms Strinic reported that Mr Shuetrim stated he was “unable to drive due to his functional limitations with his left elbow injury and also due to his anxiety symptoms”. She further reported that “he no longer socialises with friends and family due to his anxiety” and had “lost interest in previously pleasurable activities such as socialising with friends and family”.

129. Ms Strinic reported:

“The Assessor engaged Mr Shuetrim in some discussion regarding consideration of alternative occupations in the workforce that he may be able to undertake at the time of the assessment or in the future. Mr Shuetrim was open to the discussion, though continued to raise barriers as to why he felt he would never be able to return to work again. During this discussion, Mr Shuetrim indicated he would not know what else he could do. He noted an interest in outdoor employment such as gardening or farm work. He reported he has only ever worked as a Trades Mechanic and Police Officer, and reported holding no other qualifications. Mr Shuetrim stated he had been certified unfit for work since his last date of employment in 2011 and subsequently advised he had not performed job seeking since this time.”

130. Ms Strinic then discussed various “[o]ptions [i]dentified”.

131. The first option was that Mr Shuetrim return to work as a motor vehicle mechanic. Ms Strinic concluded:

“…based on the available medical information and lack of available and current physical and psychological functional information relating to Mr Shuetrim’s work capacity, this option was not considered suitable.”

132. Ms Strinic then considered possible work for Mr Shuetrim as a landscaper or gardener and concluded:

“Research identified that a Horticultural Certificate or Diploma is required. The work demands were identified as heavy noting Mr Shuetrim would be required to carry bags of soil, turf or handle gardening equipment and tools… Mr Shuetrim does not possess the prerequisites to gain entry into this field. As a result, APM do not consider the vocational option of Gardener is suitable for Mr Shuetrim based on his lack of training, and experience in the industry and his reported reduced physical tolerances to perform gardening duties.”

133. Ms Strinic then considered the possibility of Mr Shuetrim becoming a sales representative for motor vehicle parts and accessories and concluded:

“The vocational option of Sales Representative was identified as a potential option for Mr Shuetrim, given he has transferable skills applicable to this industry. Specifically, Mr Shuetrim has extensive knowledge of and experience in the motor vehicle and mechanical industry. Furthermore, he has extensive customer service skills having worked as a Senior Technician within various Auto businesses. These skills are likely to be highly regarded in this industry, as specific qualifications are not generally required for this type of role. While Mr Shuetrim could still seek employment as a Sales Representative in this industry as no minimum education is generally required, this occupation is rated as medium. Mr Shuetrim’s specific functional abilities have not been formally assessed and as such it is difficult to determine his ability to sustain work as a Sales Representative (Motor Vehicle Part and Accessories). Mr Shuetrim also reported restrictions relating to generalised and social anxiety as noted above. As such this role would also require interaction and communication with supervisors, co-workers and customers, thereby placing Mr Shuetrim in an emotionally vulnerable position if he was to undertake this type of work. Therefore, based on the available medical information and lack of available current physical and psychological functional information relating to Mr Shuetrim’s work capacity, this option was not considered suitable. Further assessment of the suitability of this role for Mr Shuetrim is required.” [Emphasis in original]

134. Finally, Ms Strinic considered whether Mr Shuetrim could do work as an inquiry clerk or service advisor. She concluded:

“Mr Shuetrim presented to the assessment with excellent communication, listening skills and basic computer skills. Moreover, Mr Shuetrim has extensive skills and experience as a Vehicle Mechanic and has thorough knowledge of vehicle parts and accessories. Furthermore, Mr Shuetrim has worked as an Assistant Manager and has knowledge of and experience with sales targets, customer service, managing staff and basic computer skills. These skills are considered highly transferable and advantageous for such a role. Furthermore, Dr Paul (Consultant Physician) indicated in a report dated 6 February 2012, the following ‘He is currently fit for part-time light sedentary work’. He also noted ‘His skills and experience include some experience as a retail store assistant manager and he could use the skills he acquired in this position and transfer them into a similar light, office-based, administrative role’. Consequently, Inquiry Clerk/Service Advisor is considered suitable for Mr Shuetrim to pursue based on his education, training and experience; however his physical capacity to perform this role is unclear.” [Emphasis in original]

135. The report of Dr Paul to which Ms Strinic referred was not in evidence before me. Mr Bleasel informed me that he had been unable to locate it. There is no other evidence that Mr Shuetrim saw Dr Paul.

136. Ms Strinic’s report continued:

“Further vocational options considered appropriate based on Mr Shuetrim’s transferable skills, and which are meaningful, however requiring further assessment of his physical and psychological work capacity to determine the suitability of the roles includes [sic]:

● Book keeper

● Administration (Justice industry)

● Factual Investigator

● Library Assistant

● Claims Officer

● Court Clerk

● Security Guard

● Customs Officer

It is recommended that Mr Shuetrim’s ability to physically perform the above identified roles be further assessed psychologically and physically.”

137. Overall Ms Strinic concluded:

“The undersigned was unable to determine suitable vocational options for Mr Shuetrim due to conflicting medical evidence and limited information available relating to his current physical and psychological work capacity.

…

Mr Shuetrim presented for the assessment casually attired and cooperative, and was observed to exhibit signs of anxiety through flat affect and holding his left hand with his right hand during the course of the assessment. Mr Shuetrim presented with sound transferable skills however due to his presenting physical and psychological symptoms, suitable vocational options were unable to be determined from a review of limited and current medical information. There are a number of vocational options deemed appropriate for Mr Shuetrim to pursue in accordance with his education, transferable skills, demonstrated aptitudes, and age. However, many occupations were not in accordance with his functional and psychological tolerances based on a review of available medical evidence.”

138. Ms Strinic thus opined that Mr Shuetrim had the “transferable” and “customer service” skills and “extensive knowledge” apposite for a sales representative in the area of motor vehicles and accessories, but that because of his “reported restrictions relating to generalised and social anxiety” this option was not considered suitable and further assessment of the suitability of such a role was required.

139. Ms Strinic also thought occupation as an inquiry clerk or service advisor was suitable for Mr Shuetrim to pursue based on his education, training and experience, but that his physical capacity to perform that role was “unclear”. Ms Strinic concluded that although Mr Shuetrim “presented with sound transferable skills”, suitable vocational options could not be determined because of his “presenting physical and psychological symptoms”.

140. A few months later, on 12 September 2014, Mr Shuetrim’s then GP, Dr Nadir Sher, expressed the opinion that there was “more than 90 per cent” certainty that Mr Shuetrim was “unable to join any form of employment”. However, Dr Sher concluded that Mr Shuetrim could be retrained to do something different and “with extensive retraining and rehabilitation [would] be able to perform some sort of meaningful work”. Dr Sher’s opinion was expressed briefly and I am inclined to place far more weight on Ms Strinic’s more considered observations.

Mr Shuetrim’s evidence

141. On 7 June 2013 Firths served on the Trustee Mr Shuetrim’s 5 June 2013 statement referred to at [21] above.

142. In that statement, in addition to the matters set out above, Mr Shuetrim made these observations about his “everyday life”:

“26. Since the onset of my elbow condition and the resulting anxiety, low mood and depression, my sleeping patterns have been affected. This has remained unchanged to present. …

27. Since the exacerbation of my mental health from my elbow injury to present, my driving ability has deteriorated. I find that I now only drive short distances. If I need to go get petrol I will ensure that I go at night time as I know that there will be less people around this time. I try and avoid interacting with people as much as possible. I also find that whilst driving I avoid any complicated intersections or streets which necessitate the ability to negotiate traffic. I find that I develop panic attacks should the road situation become complicated for me. I absolutely avoid driving during peak hour traffic as well as long distances. …

28. In addition, I can only keep my arm on the steering wheel for around 10 minutes or so before my left elbow pain becomes too severe. After 10 minutes I will remove my arm from the wheel and rest it on my lap. …As a result I try and limit my driving to less than 10 minutes at a time as it would be negligent of me to consciously drive for longer than this amount of time as I cannot hold the wheel properly. In saying that should I drive a distance which it will take less than 10 minutes I ensure that I know the route that I am taking as I wish to avoid any potential panic attack and anxiety or stress exacerbation.

29. I have good days and bad days with my anxiety, stress and overall mental health. …I find that if I am experiencing a bed [sic: bad] period with my anxiety and stress levels I will refrain from leaving the house. …A bad period can last anywhere up to three days. …I am able to leave the house during a good period. …

30. Going shopping is a very difficult task for me. If I do try and go shopping to a shopping centre I will go at a time when I am aware that it is not as busy. I will only last around 20 to 30 minutes in a shopping centre before I will need to move away from the crowds and go home in order to try and put myself at ease and avoid a panic attack. Merely the thought of shopping or going to shopping centres is an issue for me. Arriving to the car park and seeing a lot of cars will cause me to turn back and go home.

…

33. Prior to the onset of my injury and resulting stress and anxiety I would frequently go for coffee and drinks with friends and work colleagues. As a result of my elbow injury and following anxiety and stress I have lost a great amount of contact with my friends and absolutely all contact with my work colleagues. I feel in attempting conversation with previous friends I have nothing to talk about. …Prior to my elbow injury I would go out with friends twice a week. Now I probably only go out with my friends once a month at best – it is very infrequent. …

34. Crowds of people and peak hour traffic are too much for me to bear.

…

35. In saying that I barely even communicate with my friends. I see them once every couple of months should I be feeling mentally up to it. …

36. As a result there is no way I would be able to attend to an alternate role to those that I have experience. There is no way my conditions will allow me to successfully work as a Retail Shop Assistant, Grocer or Store Clerk. Mentally I cannot deal with people and I would be sure to spiral into a panic attack after 20 or 30 minutes of turning up to work. I cannot handle face to face interaction and try to avoid it as best I can.

…

42. There is no way I would be able to regularly attend university classes, lectures or seminars. I have a fear of gatherings and crowds and would not be able to mentally get myself to the classes. …”.

143. As can been seen from these extracts, much of Mr Shuetrim’s statement speaks of his then present condition. However, it is clear enough that Mr Shuetrim is saying in the statement that his physical and mental condition has not changed since the onset of his physical and mental symptoms in 2011. Thus he said, at [26], that “since the onset” of his elbow and anxiety condition his sleeping patterns have been affected and “this has remained unchanged to present”. At [33] Mr Shuetrim compares his social activities from “prior to the onset of my injury and resulting stress and anxiety” to the then present situation and speaks of what he can no longer do. Overall, a fair reading of Mr Shuetrim’s statement is that he is describing both his position in June 2013 and at all times since the incidents of 2011, including on the relevant dates (May and July 2012). In so doing, Mr Shuetrim is giving an account of his condition which is to much the same effect as the various medical practitioners’ record he gave to them.

144. For those reasons, I do not accept Mr Duncan’s submission that Mr Shuetrim’s statement was not speaking as at the relevant date (May 2012 for MetLife) and is therefore “of little to no benefit”.

145. In the statement, Mr Shuetrim went on to say this about “prospects of future employment”:

“35. There is no way I would be able to deal with the personalities and work politics in a station or local area command. My condition does not allow me to leave the house on occasions let alone get along with and communicate with work colleagues. In saying that I barely even communicate with my friends. I see them once every couple of months should I be feeling mentally up to it. My condition is such that I am quite fearful and hyper-vigilant of everyday situations. I was never like this in the past. I find that I am always afraid and completely avoid any potential conflict or argumentative situations.

36. As a result there is no way I would be able to attend to an alternate role to those that I have experience. There is no way my conditions will allow me to successfully work as a Retail Shop Assistance, Grocer or Store Clerk. Mentally I cannot deal with people and I would be sure to spiral into a panic attack after 20 or 30 minutes of turning up to work. I cannot handle face to face interaction and try to avoid it as best I can. I cannot even help volunteer in the canteen or on the barbeque for my son’s local soccer club. I find that dealing with people, their personalities, complaints and inquisitiveness is too much for me to bear given my mental health symptoms. I try and deal with it the best I can however during a bad period this only adds to my frustration, irritability and depressive mood.

37. In saying that my mere physical limitations would inhibit me from successfully undertaking any regular ruminative work in these roles. I would not be able to pack and unpack stock orders or stack selves [sic: shelves] with new stock. My left elbow is basically useless and I could not attend to any regular or repetitive work using my left arm. There is no way I would be able to assist customers with their requests for stock or enquiries about stock that was stored in the store room.

38. I have contemplated alternate roles which do not involve as much customer focus. I have contemplated the role of a Process Worker and Console Operator. Unfortunately due to my anxiety and exacerbated stress levels I would not be able to concentrate or focus on work for a sufficient amount of time. I find that any form of decision making or discretion on my part causes me to spiral into a panic attack. I find it very frustrating that I cannot retain the responsibility to which I previously held. Being in a work environment would exacerbate my stress levels as I cannot interact with other work colleagues. I do not have the mental resilience to persevere with work politics.

39. There is absolutely no way I would be able to return to my previously [sic] field of work as a Mechanic. I do not have the physical ability to successfully service a car. I would not be able to manually pull and push a tire off a car to change it without immense pain in my elbow, let alone on a regular basis. There is no way I would be able to work on an engine exchange as I would need to pull all the ancillary components off the engine and I would need both arms to do so. Merely unscrewing screws with a screwdriver is impossible for me to attend to with and [sic] regularity or without pain due to my elbow condition. The repetitive nature of such actions would be too excruciating.

40. Even in my more senior years as a Mechanic there was still too much manual labour involved for me to handle given my elbow conditions and limitations. Even the supervisory aspect would not be something I could do. I do not have the self-esteem or confidence to make decisions and conclusions under time and cost pressures. As it is a business environment it would be my obligation to keep things running at a minimal cost, keeping profits high and revenue coming in. [M]y mental health restricts me from performing under such pressure. Further I would not be able to liaise with customers or other supervisors about the work, repairs or complaints.

41. I have contemplated more sedentary roles such as that in an office as a Clerk or Administrative Assistant. Unfortunately my inability to type would be of no assistance to an office. My depleted concentration due to my elbow pain levels would also inhibit my prospects of being a sound candidate for office employment. On top of all this my anxiety and stress levels would not allow me to attend an office environment due to my fear of interacting with people face to face or even over the telephone. There is no way I would be able to answer calls on a regular basis dealing with different people and their enquiries. I find that any minor responsibility in the decisions I make mentally exhaust me and I will often avert from any subsequent decisions and merely keep myself at home away from any outside interaction.”

146. Again, a fair reading of this part of Mr Shuetrim’s statement, especially when considered in the context of the earlier paragraphs that I have set out at [142], is that Mr Shuetrim is saying that the “condition” (see his [35]) and “physical limitations” (see his [37]) which render him unable to pursue the occupations to which he refers are those which obtained since the 2011 incidents (including on the relevant dates of May and July 2012).

147. On 6 March 2014 Mr Shuetrim swore an affidavit in these proceedings to which he annexed his 5 June 2013 statement.

148. In that affidavit, Mr Shuetrim stated:

“4. Since signing my Statement, I continue to experience anxiety and stress at levels which affect my concentration, focal thinking and short term memory.

5. I continue to take Effexor 150mg – two tablets per day.

6. The side effects from this medication continue. I remain affected with headaches, dizziness, light headedness and lack of focus from the medication.

7. My sleeping patterns remain affected by my left elbow pain and mental health conditions.

8. I am still only able to drive short distances of around 10 minutes or so. I continue to experience panic attacks during complicated intersections and traffic ways. I continue to have difficulty holding the steering wheel with my left arm.

9. The fluctuation between good days and bad days with my conditions continues to trouble me. This results in making me irritated and frustrated from my lack of mobility and physical limitations. I still experience bad spells lasting up to three days in a row in any one week. I am still unable to leave the house during these spells.

10. I continue to be unable to return to any role in the Police Force due to my conditions, limitations and symptoms.

11. Similarly, I am disabled to such an extent that I cannot see myself returning to other forms of employment such as retail, sales, security or grocery type work. My physical limitations as well as my poor mental health prevent me from performing any regular work particularly involving repetitive movements of my arm.

12. Other forms of employment such as process, and console work are not achievable for me given the restrictions and limitations of my physical and mental health conditions.

13. Mechanical work would be impossible as the majority of the duties in these types or [sic: of] roles remain necessary for the use of your arms and arm strength.

14. Clerical and sedentary office work remains unsuitable for me because of the side effects of my medication, mental health symptoms such as panic attacks, and distracting pain levels.

15. I continue to suffer from panic attacks and anxiety from the thought of social situations, interaction and conversation. This would prevent me from being able to remain in any type of office environment. I remain erratic and have irrational thoughts.

16. I continue to be unable to perform any type of full-time, part-time or casual employment in my locality due to my conditions, limitations and symptoms. For the same reasons I am not a suitable candidate for any retraining or any job that would stem from retraining.”

149. Again, although the focus of this evidence is on Mr Shuetrim’s then present condition, Mr Shuetrim also speaks historically; he speaks of continued disabilities at [8], [10], [15] and [16]. A fair reading of this evidence is that Mr Shuetrim was saying that his position remained as it was in 2011, and at the date of his June 2013 statement.

244. Overall, Ms Strinic’s conclusions were that:

• she was unable to determine a suitable vocational option for Mr Shuetrim due to “conflicting medical evidence and limited information available relating to his current physical and psychological work capacity”; and

• although Mr Shuetrim had “sound transferable skills”, she could not determine a suitable vocational option “due to his presenting physical and psychological symptoms” and many occupations were “not in accordance with his functional and psychological tolerances based on a review of available medical evidence”.

246. Since April 2013, MetLife had agitated for Mr Shuetrim to attend a vocational assessment. It was Mr Shuetrim’s refusal to attend a vocational assessment at that time that caused MetLife to close its file in June 2013. MetLife then fought a contested motion in these proceedings to compel Mr Shuetrim to attend on Ms Strinic. And yet it failed to give Ms Strinic’s opinion any, or any proper, weight when coming to its decision.

247. MetLife’s letter states that there were “no clear opinions among the available evidence that Mr Shuetrim is unlikely ever to engage in any other gainful profession, trade or occupation for which he is reasonably qualified” and that “[i]nstead, the medical evidence is characterised largely by findings that Mr Shuetrim could return to work in an alternate vocation”.

248. In my opinion, it was a breach of MetLife’s duty of good faith and fair dealing to Mr Shuetrim to express that opinion without endeavouring to reconcile it with the findings of Ms Strinic.

249. In my opinion, that failure was so unreasonable as to constitute a breach of MetLife’s obligations to Mr Shuetrim sufficient to vitiate its decision.

250. Accordingly, as with TAL, I must consider for myself whether Mr Shuetrim is TPD.

Is Mr Shuetrim TPD?

251. To the extent that there was an evidentiary onus on the insurers to “introduce evidence” to show that there were specific occupations open to Mr Shuetrim to pursue notwithstanding his elbow and anxiety condition, my opinion is that the insurers have discharged that onus.

252. First, the insurers pointed to Mr Shuetrim’s own evidence about the business “Diesel Imports” that he conducted in early 2007.

253. Second, Ms Strinic had identified two occupations for which Mr Shuetrim’s training and experience appear to qualify him (motor vehicle parts and accessories sales representative, and inquiry clerk or service advisor), albeit subject to the qualifications to which I have referred concerning his reported physical and psychological conditions.

254. The authorities that I have set out above show that Mr Shuetrim must prove that, on the probabilities, he was on the relevant dates (May to July 2012) so “incapacitated” that he is “unlikely ever” to actually obtain employment, on a full time or part time regular basis, in some recognised occupation, which he is likely to be able to obtain, and for which he is reasonably qualified by reason of his education, training or experience.

255. Mr Shuetrim is now 38 years of age. At the time of his elbow injury, and at the relevant times, he was 35 years of age. He then had a working life expectancy in the vicinity of 30 years. The expression “unlikely ever” means that Mr Shuetrim must show that, probably, he would not during that period of 30 years “ever” obtain relevant employment.

256. The evidence establishes that Mr Shuetrim has chronic “tennis elbow”.

257. He has also been diagnosed as having a “severe stress reaction” due to his experiences in the Police Force (Dr Calthorpe), a “Generalised Anxiety Disorder incorporating panic phenomena” (Dr Collins) and a “Generalised Anxiety Disorder” and “Panic Disorder with agoraphobia” (Dr Martin).

258. As noted at [242] above, in its decision letter of 10 February 2015 MetLife accepted that “there is consensus among the various medical report authors that Mr Shuetrim is unable to return to work as a police officer or a mechanic”. I think that concession well made. The weight of the evidence is that Mr Shuetrim cannot now return to either of his former occupations.

259. As I have said, Ms Strinic identified two occupations for which Mr Shuetrim has relevant knowledge, experience and skills; sales representative and service advisor or enquiry clerk, especially in the automotive area. Ms Strinic’s conclusion that the former occupation was unsuitable and that Mr Shuetrim’s capacity to pursue the second occupation was unclear was based on the “conflicting medical evidence and limited information available relating to his current physical and psychological work capacity”.

260. However, Mr Shuetrim gave evidence in his 5 June 2013 statement and in his 6 March 2014 affidavit that at all times since 2011, and thus on the relevant dates of May and July 2012, he has been unable to perform such work (see especially [36], [38] and [41] of his 5 June 2013 statement at [145] above, and [11], [12], [14] and [15] of his 6 March 2014 affidavit at [148] above).

261. The problem I see for the insurers in this case is that they did not challenge this evidence. Nor, otherwise than very generally, did they challenge Mr Shuetrim about anything he said to any of the doctors. Although some of those doctors expressed a more optimistic view as to Mr Shuetrim’s likely future capacity to work than Mr Shuetrim has, I do not see any of those views as being so irreconcilable with Mr Shuetrim’s evidence that, absent direct challenge, I should reject it.

262. Mr Hanson did not cross-examine Mr Shuetrim at all.

263. Mr Duncan did cross-examine Mr Shuetrim and, as I set out below, demonstrated the likelihood that Mr Shuetrim had, in his 5 June 2013 statement, exaggerated to some extent the likely effect of his disabilities on his “everyday life”.

264. But Mr Duncan did not direct one question to Mr Shuetrim on what I regard as the critical issue; namely, Mr Shuetrim’s capacity at the relevant date to engage in occupations for which he was reasonably qualified by reason of his education, training or experience, especially in the two occupations identified by Ms Strinic as potentially suitable.

265. That leaves Mr Shuetrim’s evidence on those matters unchallenged. As I have said, I do not agree with Mr Duncan’s characterisation of that evidence as being of “little to no benefit”. On the contrary, that evidence, if accepted, shows in my opinion that Mr Shuetrim is incapacitated in the manner I have set out at [254] and is thus TPD.

266. Mr Duncan cross-examined Mr Shuetrim concerning various posts he and his wife made on their Facebook pages from September 2014 to January this year.

267. In his statement of 5 June 2013 Mr Shuetrim said, at [33] (set out at [142] above), that:

“As a result of my elbow injury and following anxiety and stress I have lost a great amount of contact with my friends and absolutely all contact with my work colleagues”.

268. In cross-examination Mr Shuetrim was shown various posts he had made on the NSW Police Force’s Facebook page in December 2014 and early this year, including an exchange he had with a former colleague about a recent incident which was featured on one of the Facebook pages.

269. Mr Duncan suggested to Mr Shuetrim that, in the light of that post, it was untrue to say that he had “lost” “absolutely all contact with my work colleagues”. In response, Mr Shuetrim said “I was referring to my immediate work colleagues at the time” and suggested he was referring to a loss of contact with work colleagues “three and a half hours up the coast” (presumably a reference to Mr Shuetrim’s colleagues in the Taree area where he was stationed).

270. The following exchange occurred:

“Q. Nevertheless, at least through social media you’ve remained in regular contact with former work colleagues, haven’t you?

A. Just occasionally, yes.

Q. To say that you’ve absolutely lost all contact with your work colleagues is not strictly true, is it?

A. If you put it that way, no.”

271. In a “Member’s Statement” that Mr Shuetrim completed for TAL on 17 January 2013 (which was included in the material served on the Trustee when Mr Shuetrim made his claim for indemnity on 15 February 2013) Mr Shuetrim said:

“I don’t drive – lack of confidence with left arm and dizziness and confusion in unknown places.”

272. In his 5 June 2013 statement, Mr Shuetrim made various assertions as to his driving ability “since the exacerbation of my mental health from my elbow injury to present” (at [27] and [28], set out at [142] above). In effect, Mr Shuetrim said that he now only drove short distances, that he would try to avoid complicated traffic situations, that he would “absolutely avoid” driving during peak hour “as well as long distances”, and that he could only drive “for around 10 minutes or so” because of the pain in his left elbow.

273. Ms Strinic also stated in her report dated 24 July 2014 that Mr Shuetrim told her:

“…he is unable to drive due to his functional limitations with his left elbow injury and also due to his anxiety symptoms”.

274. In cross-examination Mr Duncan showed Mr Shuetrim a photograph which Mr Shuetrim’s wife had posted on her Facebook page on 12 January 2014 showing Mr and Mrs Shuetrim, and their three children, in the family car with Mr Shuetrim in the driver’s seat.

275. Mr Shuetrim gave this evidence:

“Q. You have, Mr Shuetrim, complained to a number of doctors about the effect that you have stated that your anxiety condition has on your ability to drive. That's correct, isn't it?

A. On occasion, yes.

Q. And to Ms Julie Strinic, who you most recently saw in relation to a vocational assessment test, you told her that you couldn't drive. That's correct, isn't it?

A. I have never told anyone I can't drive.

Q. You frequently drive and drive your family around, don't you?

A. I drive in the local area predominantly.

Q. That's with some degree of frequency?

A. Yes.

Q. And with your family.

A. On occasion. I generally try and - if I go out with them somewhere, I try and get my wife to drive around.

Q. Would you have a look at this, please. You recognise that as a photograph posted by your wife on her Facebook page?

A. Yes.

Q. That's a photograph that I presume your wife took while you were driving her and your family?

A. Yes.

Q. That's a photograph showing you driving the family car.

A. Yes.

Q. It was taken on 12 January 2014.

A. Yes.

Q. Where were you going? Do you remember?

A. No, I don't know.

Q. It was school holidays, wasn't it?

A. Yes, it would be, yeah.

Q. Were you going away at the time?

A. I'm not sure.

Q. I tender that.

A. No, I wouldn't be, sorry, no.

Q. Why do you say that?

A. Well, I went down the South Coast prior to January 12, I believe.

Q. You drove down, did you?

A. I don't think I drove. I think my wife may have driven down. I'm not too sure.

Q. It's possible you did drive.

A. I can't remember. I'm sorry.”

276. Mr Shuetrim volunteered the evidence about going to the South Coast. He did not deny that he drove his family to the South Coast. He said that he thought his wife may have driven but that he could not remember.

277. If, as he said in his 5 June 2013 statement, he “absolutely” avoided driving “long distances”, and if he could only keep his arm on the steering wheel for about 10 minutes and therefore understood it would negligent to drive for longer than that period, it is surprising that he was unable to say whether he did, or did not drive to the South Coast six months later on 12 January 2014.

278. In his 5 June 2013 statement, Mr Shuetrim said that going shopping was difficult for him and that he only went to shopping centres when they were not busy. Mr Shuetrim stated that he could “only last around 20 to 30 minutes in a shopping centre” and that “merely the thought of shopping” was “an issue for me”.

279. Mr Duncan showed Mr Shuetrim a photograph that Mr Shuetrim had posted on his Facebook page on 18 December 2014 showing him sitting in the driver’s seat of his car wearing a pair of sunglasses. Adjacent to that photograph Mr Shuetrim had posted “[t]his is [sic] my new sunglass oakley”.

280. Mr Shuetrim gave this evidence about that photograph:

“Q. Mr Shuetrim, that's another copy of a Facebook page from your Facebook, isn't it?

A. Yes.

Q. That's a post that you made on 18 December 2014?

A. I would say, yes.

Q. That is a photograph you took of yourself?

A. Yes.

Q. You were in your car at the time.

A. Yes.

Q. In the driver's seat.

A. Yes.

Q. On that occasion you had just been shopping, hadn't you?

A. I'm not sure.

Q. You had just been shopping to purchase the sunglasses that you were showing off in that photograph. Isn't that right?

A. Well, I don't know if I have just been then or what, but-

Q. On the right hand side of the photograph there is an exchange between yourself and other people who have interacted with your Facebook posting. That's correct, isn't it?

A. Yes.

Q. It includes your interaction with your Facebook posting.

A. Yes.

Q. Where you say, ‘This is my new sunglasses…’.

A. Yes.

…

Q. That's the post you made.

A. That's the post I made, yes.

Q. That helps you refresh your recollection that that posting and photograph was a result of you having gone shopping for sunglasses and you had purchased the sunglasses that you were displaying in that photograph.

A. Yeah, well, they were - that's what I'm referencing to, yeah.

Q. So do you agree with me that that posting on 18 December 2014 is the day that you went to purchase sunglasses at a shopping centre? Is that correct?

A. Look, I don't know if it was that date, but it would have been a few days perhaps before or close to that date.

Q. So some day close to 18 December 2014 you had been to a shopping centre to purchase yourself Oakley sunglasses. Is that correct?

A. Yes.

[Mr Duncan drew Mr Shuetrim’s attention to his statement at par [30] of his 5 June 2013 statement – set out at [156] above]

Q. That's a complete exaggeration, isn't it?

A. No.

Q. You see, you are prepared to go shopping for yourself whenever it pleases you. Isn't that right?

A. No.

Q. You're quite happy and content to go shopping for Oakley sunglasses, aren't you?

A. That was at the-

Q. You are quite happy and content to go shopping for Oakley sunglasses, aren't you?

A. No, it was at the repeated request by Tanya to go to the shops so she could finally get me some stuff.

Q. You went and bought the sunglasses, didn't you?

A. With Tanya, yes.”

281. In his 5 June 2013 statement Mr Shuetrim made statements concerning his anxiety at being in crowded situations. In summary, Mr Shuetrim said that crowds of people were too much for him to bear and that he had a fear of gatherings and crowds.

282. Mr Duncan put these propositions to Mr Shuetrim:

“Q. You go to incredibly crowded events.

A. I do sometimes.

Q. On any occasion that you wish to, don't you?

A. No.

Q. When you really want to go somewhere, crowds don't prevent you, do they?

A. They do.

Q. They didn't prevent you going to the Malaya and enjoying an entire day around the Piermont, Darling Harbour area, did they?

A. It's not a regular occurrence.

Q. You regularly go out socially, don't you?

A. Socially, no.”

283. Mr Duncan showed Mr Shuetrim a series of photographs that Mrs Shuetrim had posted on her Facebook page on 7 September 2014. The photographs showed Mr Shuetrim with his wife and children over a period of several hours at King Street Wharf, including at the Malaya restaurant.

284. Mr Shuetrim gave this evidence:

“Q. So you had spent some time during the day running around the area that is the King Street Wharf are [sic] and the Pyrmont area?

A. Yes.

Q. With your family?

A. Yes.

Q. Lots of people around?

A. There was, yes.

Q. And then you in the evening went to the Malay [sic] Restaurant?

A. Yes.

Q. And you had dinner with your wife and all the other customers at the restaurant at the time?

A. Yes.

Q. The next photograph, the third one, again you recognise that as being a photograph posted by your wife on her Facebook page?

A. Yes.

Q. Again, it shows the same day that you were there on 7 September 2014 with your family?

A. Yes.

Q. … [D]escribe what the photograph shows?

A. The night shot evening with the two children?

Q. What is the photograph showing?

A. Me with my two kids, two boys.

Q. Whereabouts?

A. I can't - I'm not too sure, I'm not too sure where it was.

Q. There's information that gives you a hint to it, doesn't it?

A. Where? Sorry. Lindt Café, Darling Harbour.

Q. So you were outside the Lindt Café, Darling Harbour?

A. Yeah. Yes, I remember going to the café there.

Q. So throughout this day, you're wandering around open areas with your family, having a lovely day out, with lots of people and crowds around. Is that correct?

A. Yes.

Q. And then you go to the Malay [sic] restaurant and have dinner there with your family and the other patrons of the restaurant?

A. I did, yes.

Q. And then after that you go out and you buy yourself and your family some dessert at the Lindt Café in Darling Harbour?

A. I didn't actually go in there myself. I just waited outside.

Q. I think the final photograph in that lot that you're looking at at the moment is a photograph of you in the Malay [sic] restaurant on the same occasion enjoying your meal?

A. Yes, that's correct.”

285. Whether or not Mr Shuetrim went inside the Lindt Café at Darling Harbour, the photographs show that Mr Shuetrim spent an extended period, many hours, at King Street Wharf “with lots of people and crowds around”.

286. Mr Shuetrim was also shown a photograph posted by Mrs Shuetrim on her Facebook page on 2 January 2015. The photograph shows Mr and Mrs Shuetrim and their children at the Bungalow 8 restaurant at Kings Street Wharf (albeit with no other persons visible in the photograph).

287. Mr Shuetrim gave this evidence:

“Q. You go indoors to the Malay [sic] restaurant, to the Bungalow 8 restaurant, any time you choose without any problem, don’t you?

A. It’s – these things are done under a certain proviso. If something starts happening, then we agree to go and that’s it, we leave.”

288. As I have said, Mr Shuetrim said in his 5 June 2013 statement that “crowds of people…are too much for me to bear”.

289. Further, in his Member’s Statement of 17 January 2013, Mr Shuetrim said that:

“…attending ‘A’ league soccer matches are no longer possible due to crowd anxiety”.

290. Mr Duncan showed a photograph that Mr Shuetrim had posted on his Facebook page on 10 January 2015 at the ANZ Stadium. The photograph shows Mr Shuetrim’s son with The Emir of Uzbekistan.

291. Mr Shuetrim gave this evidence:

“Q. You were out at ANZ Stadium at Homebush.

A. That's right.

Q. The reason you were out there was because there was a very big soccer match on that day, wasn't there?

A. There was.

Q. You were attending that soccer match with your son.

A. Yes.

Q. There were significant crowds, weren't there?

A. There is, yes.

Q. That was another social event that your agoraphobia and anxiety didn't prevent you from going to. Is that correct?

A. It's an entertainment venue. There's no interaction with people on a social level, I would say. It's just my son and I going to the soccer.”

292. Mr Duncan then showed Mr Shuetrim the statement from Mr Shuetrim’s Member’s Statement that I have set out at [289] above. Mr Duncan suggested that it was not true for Mr Shuetrim to say that attendance at A league soccer matches “are no longer possible due to crowd anxiety”.

293. Mr Shuetrim’s response was to say:

“I meant on a regular basis as a member; as a member.”

294. In my opinion, that was a disingenuous response and I do not accept it. Contrary to what he said in his Member’s Statement, it is clear that he is able to attend major soccer matches, with large crowds present.

295. Finally, Mr Duncan showed Mr Shuetrim a post that Mr Shuetrim had made on his Facebook page on 19 September 2014 being a review of Wet’n’Wild Sydney.

296. Mr Shuetrim had posted:

“I really loved, loved, loved the sand between my toes, awesome! special times…oh and the line up…”.

297. Mr Shuetrim gave this evidence:

“Q. I show you this. Mr Shuetrim, you went to the Wet'n'Wild amusement park in Sydney, didn't you?

A. I've been there. I have been there, yes.

Q. And you went there on or about 19 September 2014?

A. Last year some time, yes.

Q. A very large public place. Yes?

A. Yes.

Q. When you were there, there were hundreds if not thousands of people. Correct?

A. Yes.

Q. And you posted a comment, a review comment, on their website?

A. Okay. Yes.

Q. And you said, ‘I really loved loved loved the sand between my toes. Awesome. Special times. Oh, and the line up...’.

A. Yes.

Q. And that was a reference to the queues?

A. I believe so, yes.”

298. The cross-examination concluded:

“Q. You’ve exaggerated the extent of your disability to the doctors that you’ve spoken to. That’s correct, isn’t it?

A. No.

Q. I want to suggest you’ve done that because you know that your opportunity to succeed in obtaining TPD benefits depends upon those exaggerations.

A. No.”

299. Thus, as I have said, Mr Duncan’s cross-examination did reveal that Mr Shuetrim has to some extent overstated the effect of his physical and mental conditions in his everyday life.

300. The Facebook posts were, however, made between September 2014 and January of this year; that is, several years after the relevant dates (May to July 2012). They record only a small number of incidents and outings, and perhaps only those which were happy and trouble free occasions for Mr Shuetrim and his family.

301. Mr Shuetrim explained the context of some of the posts in a manner consistent with the account in his 5 June 2013 statement of his “everyday life”. Thus, when answering questions about his attendance with his son at a crowded ANZ Stadium in January this year, he said there was “no interaction with people on a social level” and that it was “just my son and I going to the soccer” (see [291] above).

302. In relation to his visits to the Bungalow 8 and Malaya restaurants, he said there was a “proviso” that if “something starts happening, then we agree to go and that’s it, we leave” (see [287] above). That comment, which occurred very near the end of Mr Shuetrim’s cross-examination, was, unsurprisingly, not pursued by Mr Duncan; nor was it taken up in re-examination by Mr Bleasal (there was no re-examination). However, I understood Mr Shuetrim to mean that family visits to restaurants are subject to an understanding between Mr Shuetrim and his wife that, if Mr Shuetrim’s condition becomes such that he is no longer able to remain at the restaurant, he and the family leave immediately.

303. The fact remains that Mr Shuetrim’s evidence on the critical question, his capacity to work, remains unchallenged.

304. As I have set out above, in his 5 June 2013 statement, Mr Shuetrim said that there was “no way my conditions will allow to me to successfully work as a Retail Shop Assistant, Grocer or Store Clerk”, that he would not be able to concentrate or focus on work sufficiently to engage in the role of “Process Worker and Console Operator” and that his “depleted concentration due to my elbow pain levels” would “inhibit my prospects of being a sound candidate for office employment” (see [145] above).

305. In his affidavit of 6 March 2014, Mr Shuetrim said that he could not see himself returning to work in employment “such as retail, sales, security or grocery type work”, that employment as “process, and console work are not achievable” and that his “panic attacks and anxiety from the thought of social situations, interaction and conversation” would prevent him from being able to “remain in any type of office environment” (see [148] above).

306. Mr Shuetrim was not cross-examined about these matters. In those circumstances, I am not prepared to reject his evidence. Indeed, I accept it.

307. In those circumstances, I am satisfied that Mr Shuetrim has sustained his onus of showing that he satisfies the definitions of TPD in each of the TAL and MetLife policies.

Conclusion

308. My conclusion is that Mr Shuetrim is entitled to the declarations and orders he seeks concerning the TAL and MetLife decisions of 17 December 2014 and 23 January 2015 and to the orders he seeks concerning his TPD entitlements under the policies in question.

309. I invite the parties to bring in short minutes to give effect to these reasons.

310. I will now hear submissions as to costs and as to interest pursuant to s 57 of the Insurance Contracts Act.

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Amendments

01 May 2015 - Typographical error in quote at [21] corrected

Decision last updated: 01 May 2015