The Advanced Technology Group Pty Ltd v ING Life Ltd; Colin John O'Brien v ING Life Ltd

[2006] NSWDC 4

CITATION:	The Advanced Technology Group Pty Ltd v ING Life Ltd; Colin John O'Brien v ING Life Ltd [2006] NSWDC 4
HEARING DATE(S):	22/05/06 - 01/06/06
JUDGMENT DATE:	9 August 2006
JURISDICTION:	Civil
JUDGMENT OF:	Rolfe DCJ
DECISION:	Verdicts for the Plaintiffs. Direct the parties to bring in Short Minutes of Order to reflect these reasons for Judgment.
CATCHWORDS:	Income Protection Policies - Meaning of Total Disability - Chronic Fatigue Syndrome - Meaning of Gainful Occupation
CASES CITED:	Willkie v Gordion Runoff Limited (2005) HCA 17 Australian Casualty Co Limited v Frederico (1985-1986) 160 CLR 513 at 520-521 Jarrad v Melbourne Metropolitan Railways (1978) 21 ALR 201 at 209 Johnson v IGE Insurance Company (1997) EWCA 1395 (15 April 1997) Abacus Consultants v National Mutual Life of Australia (2003) SADC 135 Bensky Mercentile Mutual Limited (1999) 22SR (WA) 144
PARTIES:	The Advanced Technology Group Pty Limited (Plaintiff) ING Life Limited (Defendant) Colin John O'Brien (Plaintiff) ING Life Limited (Defendant)
FILE NUMBER(S):	1870/04; 1871/04
COUNSEL:	B A J Coles QC with J O Anderson for the Plaintiffs R A Cavanagh for the Defendant

JUDGMENT

1 There are two sets of proceedings before the Court. In 1870/04 the plaintiff is Advanced Technology Group Pty Limited (ATG) and the Defendant is ING Life Limited (ING). In proceedings number 1871/04 the plaintiff is Colin Joseph O’Brien, whom I will refer to as the plaintiff. The defendant is ING.

2 The plaintiff and ATG are both claiming benefits under the terms of two income protection insurance policies taken out by each of them with ING. The plaintiff’s policy was taken out in 1990 and commenced on 24 December 1990 (the “Plaintiff’s Policy”) and the other was entered into in 1992 and commenced on 9 April 2002 (the “ATG Policy”).

3 The words in the policies, although not identical, are substantially similar. Benefits became payable under the policies, in each case, if the plaintiff became disabled as a result of illness or injury (see clause 3 of Plaintiff’s Policy; clause 4 of the ATG Policy). Each policy specifies a “Monthly Benefit”. This was originally $6,250.00 in the case of the Plaintiff’s Policy and $5,820.00 in the case of the ATG Policy. These monthly benefits were increased by an Indexation Factor, so that the original amount of the Monthly Benefit went up by the percentage increase in the Consumer Price Index each year (see Second Schedule of Plaintiff’s Policy; see clause 3 of the ATG Policy), or every three months under the ATG Policy).

4 Subject to payment of premiums, ING guaranteed not to cancel the policy no matter how many claims were made, and regardless of any changes in the plaintiff’s health, occupation or past-times (clause 1.1). In each case, it was envisaged that the policy might run to the time when the plaintiff was aged 65.

5 The plaintiff and ATG both claim amounts representing benefits payable under each policy for every month since September 2003, plus the amounts paid by each of the plaintiff and ATG for premiums which they say ING is bound to waive. In addition, the ATG claim includes amounts underpaid under the ATG Policy which total $38,790.00. If the plaintiff and ATG were to succeed, I understood that ING would not dispute the underpaid premiums and the right of the plaintiff and ATG to recover premiums which should have been waived.

6 As identified by ING’s counsel in his written submissions, the matters for determination by the Court are essentially:

a Whether the plaintiff has been totally or partially disabled for the period September 2003 to date or

part thereof.

b If so, whether the plaintiff and ATG are entitled to benefits under each policy, and

c In each case, how should the benefits be calculated.

7 The relevant facts are as follows.

8 The plaintiff gave evidence that he is a company director and shareholder, along with his wife, in ATG. He was born on 30 May 1949 and so is presently aged 57 years.

9 The plaintiff was educated up to secondary level in the United Kingdom and left school in 1965. He then commenced in a five year cadetship course in electronics engineering with Elliott Automation and Marconi Avionics. The plaintiff completed four of the five years, so he did not obtain his full technological diploma.

10 The plaintiff initially worked in a radar research laboratory learning about microwave physics in the context of the development of missile guidance and early warning systems.

11 In his mid 20’s the plaintiff started working for British Aerospace on missile guidance systems then

worked briefly for Hunting Geophysics before returning to work for Marconi Avionics. The plaintiff said that having worked in these positions he obtained a broad knowledge of technology matters, specifically mechanical engineering, physics and material science.

12 The plaintiff came to Australia for the purpose of a working holiday in 1979 and stayed here after being offered a job by the CSIRO in one of its departments which was developing microwave landing systems for aircraft. He worked conjointly with AWA on this project for a year or so and then briefly worked for Hewlett Packard in its medical electronics division.

13 In the middle of 1980 the plaintiff was offered a job by Centacom to run its engineering recruitment division. The plaintiff said he started this division from scratch and worked it up to a point where he realised that he would be better off starting his own business in this area. The plaintiff started this business in late 1981 by incorporating a company and calling the business Advanced Technology Recruiters. It was given that name because the plaintiff recruited people to work in advanced technology positions. The plaintiff said he grew his business starting from a serviced office until it became one employing 15 staff by about 1989 with offices in Melbourne, Sydney and the UK. The plaintiff said that he worked between 60 and 80 hours a week in the business.

14 In the late 80’s there was a problem with the company’s ability to service its borrowings. Initially, a receiver was appointed and then the company went into liquidation. The plaintiff himself entered into a Part X arrangement under the Bankruptcy Act, 1966 (Cth) in February 1990. At the time the plaintiff entered into his Part X arrangement, ATG, a separate company which had been incorporated in the mid 80’s, began its personnel recruitment business. In effect the business was the same as the business which had gone into receivership and then liquidation. ATG retained the old clients in the new business.

15 The plaintiff said that from early 1990 onwards ATG’s fortunes were very good. He had learnt his lesson from the previous business failure and kept the business small, especially staff numbers. According to the plaintiff, his business was very profitable from day one and this enabled him to terminate his Part X arrangement earlier than been envisaged.

16 The plaintiff had married his wife, Gai O’Brien, in 1989. Their first child, a son, was born on 28 May 1990. Up until their son’s birth, Mrs O’Brien had been working with the plaintiff in the business as his personal assistant, but after their son was born, ATG employed someone else in this capacity. However, Mrs O’Brien continued to work part-time in the business as its bookkeeper.

17 The plaintiff gave evidence of his history of taking out income protection insurance since the early 1980’s, initially with Zurich Insurance. In the second half of 1990 the plaintiff decided to take out an income protection policy with ING (then known as Mercantile Mutual Life Insurance Company Limited). At the time, the plaintiff sought and obtained under the policy a monthly benefit of $6,250. Two years later the plaintiff decided to increase the protection because he and Mrs O’Brien had bought their first home in Clifton Gardens, they had had another child and their financial commitments had expanded. The plaintiff instructed Malcolm Jones, an insurance broker, to take out the insurance. Mr Jones had previously acted for him on the initial policy obtained from ING. The second policy provided income protection in the monthly amount of $5,820. The plaintiff could not recall specifically why it was that ATG was the holder of this policy; effectively, he relied on Mr Jones’ advice in this regard. The plaintiff also said he relied on Mr Jones to provide ING with all information about the source of ATG’s earnings, including the role played by Mrs O’Brien in the business and the fact that the financial outcomes achieved by ATG were in large measure due to the plaintiff’s own personal exertion. Mr Jones confirmed the accuracy of all of this evidence in his testimony at the hearing.

18 The plaintiff gave evidence about the expansion of ATG’s business. He said he had to do a lot of research to identify companies that were successful and expanding in the science and technology area. He would then make known ATG’s services and establish business relationships with managers and CEO’s, with a view to them contacting him each time they needed to place personnel. The plaintiff said he spent a lot of time visiting prospective clients’ businesses and discussing details of products, methodologies and the precise nature of the work required to be performed by a prospective employee.

19 The plaintiff gave evidence about the steps taken to headhunt someone. First of all, the plaintiff would define the job specification. Next, using his contacts, he would phone people in the particular industry whom he had identified as potential applicants and would encourage them to become interested in the job. The plaintiff would also place advertisements in the Sydney Morning Herald, preparing the advertising material himself. The plaintiff would then telephone those persons who had responded and determine which of them was suitable for interview. The plaintiff would then interview those individuals personally, after which he would prepare a short list for distribution to the client. This list contained a summary of the plaintiff’s opinion with regard to each applicant and in it he advised his client of his preferred choice amongst the applicants. The plaintiff said that in this process he often assisted candidates in preparing their CV’s. He would also see his clients and go through the written applications and discuss what had transpired during the course of interviews with applicants. Next, the plaintiff would often arrange interviews between an applicant and the client, which involved liaising with both of them. It was essential for the plaintiff to satisfy himself that the candidate wanted the job so that the client had the choice, as opposed to the candidate. Upon selection of a candidate by a client and the candidate’s acceptance of the position, the plaintiff often negotiated salaries, conditions of employment and so on. Most of the job placements concerned involved professional people with academic qualifications, or at least managerial qualifications.

20 The plaintiff said that part of the selection process involved checking references provided by candidates and the plaintiff himself used his own industry contacts to check on some applicants. It was all quite a time consuming process and the plaintiff’s reputation as a recruiter depended on his thoroughness and dedication to the challenge.

21 A critical part of the plaintiff’s success was his understanding of the scientific processes involved in the particular industries in which the plaintiff placed applicants with his clients. This involved the plaintiff learning about the client’s operations, including very specific scientific or technological processes associated with a business. The plaintiff then had to ensure that a potential candidate well understood such processes, or was capable of understanding them and was comfortable with them.

22 According to the plaintiff the business was so successful that in January 1992 he and his wife were able to acquire a new home at Clifton Gardens. The plaintiff said that one of the reasons for his success was keeping abreast with developments, from a scientific point of view. For example, in the poker machine industry, the plaintiff quickly became familiar with the conversion of mechanical poker machines to ones operating through computer systems. In that regard the plaintiff developed, in conjunction with software engineers, a paperless recruitment system for his own business, which he said aided in the success of ATG.

23 On the personal side of things the plaintiff said he was very fit and ran in a lot of marathons, took part in triathlons and played squash. He ran 18 marathons including the Sydney Marathon. He said each marathon was around about 42 kilometres in length. The plaintiff said that he was always marathon-fit and ran regularly on Sundays with a group of friends in a club called the Sydney Striders.

24 Up until 1994 the plaintiff said he had not suffered any serious illness. He commented in passing that after a marathon it was not uncommon to feel run down and to get a cold or an infection.

25 The last marathon the plaintiff ran was in August 1994 and he described it as the worst he had ever run and he had not felt worse than he did after that one. He was severely dehydrated and, in fact, did not recover properly over the next few days or weeks. He said he had lost part of his stamina and began to get recurrent flu-type symptoms, as well as terrible headaches in his forehead. The headaches were debilitating and made concentration difficult. The plaintiff said he had never suffered anything like that, nor had he experienced migraines.

26 The plaintiff said that, notwithstanding the symptoms he was experiencing, he tried to work through them because he had done that before in the sense of working through the flu. However, after a couple of months of doing this, the plaintiff felt no better. H said it was becoming very difficult to conduct proper interviews, meet clients and “carry out sensible conversations about their recruitment needs” (T 20.20).

27 Because the plaintiff was not coping, in November 1994 or thereabouts, he consulted a general practitioner, Dr Quittner. The plaintiff had consulted Dr Light in the city at an earlier time. At the point when he consulted Dr Quittner in November 1994 the plaintiff said that he was regularly missing whole days from work and his personal assistant was trying to organise things so he could do some work at home.

28 The plaintiff could not remember how much time he was off work for in November 1994. The plaintiff’s evidence was that, around about mid December 1994, when he was consulting Dr Quittner, he just had to stop work. He simply could not continue because he felt so debilitated.

29 After seeing Dr Quittner at the end of 1994 the plaintiff said that over the next few months, he stopped working, but only for short periods, because he was worried about losing his business. The plaintiff said he had a couple of months off. In the meantime, on 8 December 1994, the plaintiff made his first claim on ING and was paid benefits up to January 2005.

30 The plaintiff said he did not claim for February 2005 because he had hoped he had recovered. As he wanted to keep his business going, he returned to work.

31 The plaintiff said that from May 1995 until October 1996 he continued to received benefits from ING on the basis of a partial disability benefit. In October 1995, during this time of partial benefit, the plaintiff and his wife sold their home at Kardinia Road Clifton Gardens and moved into their property at 6 Moruben Road Clifton Gardens, which they had previously rented out. Kardinia Road was sold as the plaintiff and Mrs O’Brien were unable to service the borrowings on both properties. When the plaintiff and Mrs O’Brien moved into Moruben Road they made two rooms into offices so the plaintiff could work from home. The plaintiff said that by this time his income had halved, roughly speaking, and he was working at half capacity. The plaintiff said that because the industry in which he worked was competitive, it was becoming very difficult to maintain the business. Its profitability was declining.

32 In terms of the claims made on ING which had been paid, the plaintiff said that as between him and his wife, they averaged out the income from the business over a period of a month. The claims for partial disability were therefore based on that average (the plaintiff said he was in the habit of working for a few days and then trying to do a bit of work at home on other days of the week). As a result, the plaintiff received different sums of money for each relevant month of claim.

33 With regard to the period of partial disability between May 1995 and May 1996, the plaintiff said that he was not feeling particularly better and was deluding himself that he could work through it. His intention was to rebuild the business because he was very proud of it and did not want to lose it.

34 By May 1996 the plaintiff’s routine was to work for a few days at home and then take time off to recover. His wife assisted him by dealing with clients on the phone.

35 In May 1996 the plaintiff ceased putting in monthly claims for partial disability payments. He said he detested lodging claims and was trying to rebuild the business. He wanted to find a way of working harder and getting his income back to the previous level.

36 The plaintiff resumed putting in claims again in July 1996 because his illness made it impossible for him to fully conduct his business. He said he felt he had let his clients down.

37 Between May 1996 and August 1999 the plaintiff said that ING accepted his claims and paid him benefits under each policy. In August 1999, again the plaintiff stopped claiming benefits for a while. This coincided with the plaintiff making a capital gain on a $200,000 investment in a company known as Keycorp. The plaintiff turned his investment into about $2.2 million. Essentially, this gain was achieved by the plaintiff instructing a stockbroker to buy shares in Keycorp and selling them at the right time. The plaintiff described the process as riding the dot.com boom (T30.10).

38 The plaintiff said that with the capital returns he made on his share investments he did not feel that he ought to be claiming under his ING policies. Having said that, the plaintiff said he did not work as a share trader himself. He simply gave instructions to a broker from time to time to buy shares. The plaintiff did not buy shares using the Internet. The plaintiff explained his success with technology stocks was because of his knowledge of the companies in that industry. The investments made in the shares were sourced from family savings and some borrowings.

39 The plaintiff said that the share purchases commenced in about 1998. He did not spend a lot of time on this activity. He said he might give a broker instructions sometimes once a week, sometimes monthly. This would take up no more than an hour or two of his time. The plaintiff said he certainly did not make share investments a full time activity.

40 The plaintiff said that during this period he was seeing various medical practitioners, including his general practitioner, the specialist, Professor Dwyer, and a psychiatrist to whom he was referred by the Professor. The consultations were generally on the initiative of the plaintiff or his general practitioner.

41 In April 2001 the plaintiff saw his general practitioner, Dr Quittner, and complained of severe headaches, a recurring sore throat, muscle pains, fatigue and insomnia. At the same time, the plaintiff recommenced making claims on ING under both policies. He said the reason he did so was because he was still ill; importantly, the plaintiff said he had never ceased to be ill and it was impossible for him to continue in his business without the support of the income protection policies (T32.7).

42 From April 2001 until August 2003, ING paid the plaintiff and ATG the claim benefits under the policies. During that period of time the plaintiff continued to see Dr Quittner and some other medical specialists and was visited by ING’s investigators.

43 In August 2001 the plaintiff and his wife purchased, in partnership, the business known as Echoes Boutique Hotel and Restaurant located at Katoomba. The purchase was fully geared using the plaintiff and Mrs O’Brien’s home at Duffys Forest as security.

44 Initially, the O’Briens sought to run the business from their home. They had moved to Duffys Forest from Moruben Road a little while before they purchased the hotel. However, the plaintiff said that he and Mrs O’Brien realised it was too difficult for the hotel business to be controlled from a distance. Accordingly, the O’Briens moved to the Blue Mountains and Mrs O’Brien ran the business on a daily basis. Prior to this move, the plaintiff said that the O’Briens attempted to have a resident manager in occupation at the hotel. This arrangement lasted no more than three or four months and it did not work out. Accordingly, the plaintiff and Mrs O’Brien decided that Mrs O’Brien would run the business with the assistance of a part-time manager.

45 In terms of the plaintiff’s role in the operations of the hotel, he said that it was superficial. As he had learnt “the rules of cost control” (T33.37), the plaintiff asked the part-time manager to design a spreadsheet to be provided to the plaintiff every day. The spreadsheet recorded occupancy rates, food sold and so on. The plaintiff said it took him about five minutes each day to check this information. He also said that Mrs O’Brien and a member of staff put together a profit and loss statement every month and the plaintiff would then review the statement.

46 In terms of marketing, the plaintiff said that a marketing company was employed. Occasionally the plaintiff liaised with the principal of that company. The plaintiff also got a graphic designer to prepare a website for the hotel.

47 The plaintiff gave the following evidence at T34.4 about the time he spent at the hotel:

“Q. Did those functions involve a significant amount of time or effort on a particular number of days a week?
A. No, it varied. Some days it would be nothing, other days it could be anything between one to four hours. Occasionally I would work two or three days and then take a number of days off and on a fairly regular basis I would pop into the hotel in the evening at about 6 o’clock for an hour, for about four days, sometimes three days a week.
Q. Apart from the late afternoons or early evenings you went in at some days a week did you generally perform the functions you’ve been describing at home and away from the hotel premises?
A. Correct.
Q. Were you in receipt of any income in connection with the trading of the hotel?
A. No, the hotel lost money until the final year.”

48 The daily activities of the plaintiff are recorded in exhibit B, a document brought into existence by him at the request of ING. The records were sent to ING on a regular basis, either weekly or monthly.

49 The plaintiff said that whilst living in the Blue Mountains he attempted to get back to previous levels of physical fitness by going on bushwalks. He even tried to recommence his occupation of personnel recruitment consultant between February and June 2002, but he was unsuccessful. The plaintiff said he secured an office in Macquarie Street, which gave him access to a bedroom where he could rest. He was given an assignment by an old client, Polartechnics, to recruit a CEO and was paid a small retainer. However, the plaintiff said he was unable to complete the assignment because he became ill, specifically, fatigued and confused. With the agreement of the client, the plaintiff decided that the assignment should then end. Thereafter, the plaintiff has not attempted to pursue the occupation of personnel recruitment consultant.

50 In September 2003 ING stopped making payments under both policies. However, the plaintiff said that nothing had changed at that point, either health wise or in terms of working. Indeed, up until then, ING had consistently and routinely, over a long period of time, paid benefits to the plaintiff and ATG on the basis that the plaintiff was totally disabled. There is no suggestion that, in doing so, ING was making a mistake and no one was called from ING to explain why ING changed its mind and stopped paying benefits.

51 In May 2004 the plaintiff and Mrs O’Brien sold the Echoes Hotel, achieving a capital gain. The plaintiff said that from a personal point of view he had not otherwise derived income from the trading operations of the hotel in the three years that he and his wife were running it.

52 After the hotel was sold the plaintiff said he did very little because his health had not improved. As mentioned, he did not attempt to resume the occupation of personnel recruitment consultant. The plaintiff said this was because it was not a job that he could do for only two or three hours a day. The plaintiff likened the work to that of a busy barrister working seven days a week. In reality, the plaintiff was saying he had to be available “24/7”, to use modern parlance. He explained that the recruitment business required him to liaise constantly with clients and candidates, taking phone calls at all hours of the day. A lot of time was spent interviewing people, on average, four to six interviews per day which took up many hours. It was not possible to reduce the hours worked because the business would effectively evaporate. Moreover, the plaintiff said it would not be possible to break down his role into component parts and try to do only one or two of those parts; the job was a whole one and he was required to do all of it.

53 In terms of present health the plaintiff said that his symptoms now are the same as what he was experiencing prior to ING ceasing to make payments under the policies. Although his headaches have reduced somewhat, he put this down to not doing the work, which in any event he did not feel he was capable of doing. This is because he gets fatigued very easily, he says that he is very easily confused when he is tired and if he keeps pushing himself, he eventually develops flu-type symptoms. In particular, the plaintiff’s evidence about this was (T38.45):

“I’ve had many years of practice, I suppose, to know when to back off, because it’s pointless trying to push through it.”

54 In terms of tiredness, the plaintiff explained further (T38.54):

“It depends on how I manage my own time. I’ve often likened it to the fact that I have 10 marbles in my jar whereas a normal person has 20, and I have to divide those marbles up very carefully.”

55 The plaintiff said that in short spells his concentration span is fine, but anything which is longer than an hour or two creates difficulties for him.

56 In February 2005 the plaintiff and Mrs O’Brien acquired assets in the company referred to in the evidence, and now known as Ice TV. The plaintiff and his wife were major shareholders in the company and accordingly he became chairman of directors. The Court was informed during the course of the hearing that this company was in the process of floating on the stock market. The plaintiff said that if the float was successful, he and Mrs O’Brien would initially own 54% of the shares.

57 At the date of the hearing the plaintiff was no longer chairman of directors because the task had proved too onerous. Initially, when he was chairman, the plaintiff said what was involved was chairing a meeting once a month for an hour or two. He had to make it clear to the board that he had a two hour concentration span only. He did not go into details with the board about his illness.

58 Whilst chairman of Ice TV the plaintiff also got involved in other activities including weekly and fortnightly management meetings which lasted no more than one to two hours. He also sent a few emails and made some phone calls, but said in evidence that he was not managing the company, but rather keeping an eye on his investment.

59 Some months prior to the hearing the plaintiff said he ceased to be chairman of the company at the request of the other board members because his ill health was making it difficult for him to carry out his duties. The plaintiff said the other directors told him they had observed him becoming confused and irritable and that he was losing the thread at board meetings. For his part, the plaintiff said he had been pushing the envelope, so to speak, and was becoming very unwell because he had been trying to carry on.

60 The plaintiff said he was very upset at having to resign as chairman. He was also asked to resign from the board and negotiated a position as a non-executive director, which he still holds in order to protect the O’Brien family’s investment in Ice TV. The investment is held in the name of the plaintiff and Mrs O’Brien.

61 The plaintiff’s evidence about the public listing was that if all went well, he hoped to raise between $2.8 million to $4 million, which would result in a market capitalisation of between $8.8 million to $10 million, in which event the plaintiff and Mrs O’Brien would hold roughly 35% of the shares in the public company. When listed, the plaintiff expects to receive $30,000 per year as a non-executive director. Apart from that anticipated remuneration, the plaintiff said that he and his wife have been living off their capital since selling Echoes Hotel in May 2004.

62 Mrs O’Brien gave evidence that she met her husband in 1986, before marrying him in 1989. She met him in the context of being his personal assistant and so was able to give evidence about how he applied himself at work. Mrs O’Brien said the plaintiff was extremely motivated, he thoroughly enjoyed what he was doing and was proud of the business he was creating. He worked very long hours and would frequently speak to people after hours because of the nature of his business. Mrs O’Brien said that when she first met the plaintiff he was extremely fit, running in marathons. This did not appear to affect him and he was able to bounce back fairly quickly and carry on life as normal.

63 Mrs O’Brien said that the plaintiff was in excellent health and rarely ever had a cold. She could not recall him taking days off prior to 1994.

64 Mrs O’Brien stopped working full time in the business after their first child, Benjamin, was born in 1990. She resumed assisting the plaintiff a little later on doing part-time bookkeeping work. This took only about three hours per week, if that.

65 In 1994 Mrs O’Brien said she noticed a marked change in her husband’s health. After running in a marathon, he became very tired, experienced flu symptoms and complained of headaches. Mrs O’Brien observed that the plaintiff appeared to get better but then relapsed with the headaches being constant. Notwithstanding, the plaintiff was still very “full on” in the business, although he started to complain to his wife about migraine style headaches and tiredness. She observed the plaintiff having to rest a lot more than he had ever done in the past. He also complained about flue type symptoms such as aches in his legs.

66 Mrs O’Brien said that although the plaintiff tried to carry on with the business, eventually he was not able to and the level of business activity started to reduce, resulting in them selling the Kardinia Road property, as she and the plaintiff could not afford to service the borrowings in relation to it and the Moruben Road property.

67 Mrs O’Brien said that the plaintiff attempted to work from home, but eventually they sold the property and moved to a new residence at Duffys Forest. At that time, about 1996, the level of business activity had reduced significantly and the plaintiff’s health had deteriorated a lot. Mrs O’Brien said that before the move to Duffys Forest she was taking a lot more calls than she would have previously.

68 Mrs O’Brien supported the plaintiff’s evidence that he tried to fund their living expenses by investing in shares on the stock market. Mrs O’Brien said the plaintiff was very disappointed that he had to, in effect, give up his work as a professional recruiter because it was work he loved and he was very proud of his achievements. She said the plaintiff found it very difficult not being able to do that type of work again.

69 Mrs O’Brien said, with regard to the purchase of Echoes Hotel in the Blue Mountains, that she had worked in the hotel industry before she met her husband and when she was growing up her parents were publicans, so she was familiar with that type of business.

70 Mrs O’Brien said that when she and her husband purchased Echoes Hotel the arrangement was that she would run the business. Specifically she said (T223.39):

“We looked – when we decided to buy it, it was really clearly made – made very clear that it was to be my business. I’d be responsible for it and we sort of had a fairly long discussion about that prior to actually buying the hotel.”

71 Initially, the O’Briens had managers in the hotel, but that did not work out, so within a matter of months of acquiring the hotel they sold their property at Duffys Forest, moved to Leura and were placing the children in schools located in the Blue Mountains.

72 Mrs O’Brien said that on a day-to-day basis she managed Echoes Hotel with the assistance of a bookkeeper. Her daily activities included supervising staff, arranging the housekeeping and making sure things went well in the restaurant. The Hotel was a 12 room hotel and the restaurant seated between 40 and 50 persons. Mrs O’Brien also had to oversee reception, training and take care of recruitment, as well as talking to chefs, working out food costing menus and staffing levels. “It was fairly full on” (T224.54).

73 Mrs O’Brien gave evidence consistently with that of the plaintiff in terms of his involvement in the management of the hotel. She said that the plaintiff did not involve himself in the day-to-day management of the hotel. He did some work with what she described as “the branding”, by finding a graphics design company to organise logos and a website. Mrs O’Brien said the plaintiff also appointed a good public relations company, but left it up to them after their appointment to take care of the marketing side of the business. She said that the plaintiff also checked on any work that the hotel handyman did to make sure it was up to scratch. Occasionally, the plaintiff would sit in the restaurant just to keep a close eye on what was happening there.

74 Mrs O’Brien said that in the first two years of the hotel venture she and the plaintiff lost money, but they managed to turn it around a bit in the third year, although she was not taking a salary out of it.

75 Mrs O’Brien said that she was under a lot of pressure running the hotel on her own and as well her husband did not take much of a role from the domestic point of view either.

76 In Mrs O’Brien’s observation, the plaintiff has never regained his levels of fitness and capacity for work that she had observed of him in the early 90’s. He has plateaued out, that is, reached a level from which he has not improved for some period of time. In Mrs O’Brien’s observation, the plaintiff has been like this for a couple of years (T226.25). The critical factor is stress, which makes a difference to the plaintiff’s health. In Mrs O’Brien’s observation, the plaintiff does not cope well with stress. He can have a number of bad days in a row after having a good day. By a “bad day”, Mrs O’Brien said in her observation the plaintiff would wake up feeling tired and lethargic and muddled in his thinking, as well as feeling generally unwell. In such situations the plaintiff is often irritated and irritable, although he forces himself not to show any irritation when the children are present. Nevertheless, things that would not otherwise concern him can be a worry. All this of course creates a problem for the family.

77 Mrs O’Brien gave evidence that when she and her husband and family went out on their boat, the plaintiff was more relaxed. She described the boat as a 48 foot luxury yacht, with electric winches, a self-filling main, self-filling jib and auto pilot. In other words, the yacht can effectively be sailed at the push of a button and apart from steering, no other physical exertion is required.

78 Mrs O’Brien also said that the plaintiff has never stopped trying to keep fit. She said he did a bit of walking and occasionally tried to jog, but both activities have decreased over time.

79 In terms of the emotional side, Mrs O’Brien said that her husband’s illness had had a big effect on him. It had changed their family life and the plaintiff was a very different person from the man she married.

80 Rodderick McKay Sutherland gave evidence that he is a chartered accountant who has known the plaintiff since 1989. Initially, their dealings were on a professional basis, but they became friends, meeting a few times a year for either a drink or lunch.

81 Mr Sutherland said that when he first met the plaintiff he was an incredibly driven, hard working, impressive person who was “very switched on” (T297.54).

82 Mr Sutherland described the plaintiff as an advanced thinker who ran a very systematised and computerised practice.

83 Mr Sutherland learned in either late 1994 or early 1995 that the plaintiff had been unable to run his business because he was ill. The plaintiff told Mr Sutherland he was struggling to run the business and sought advice from Mr Sutherland about how the business could be sold. In that respect, after discussing the matter with the plaintiff on a number of occasions, Mr Sutherland told him that the business would be very difficult to sell because it was a one-man-band operation and the plaintiff would really need to stay in the business for several years in order to ensure a transition of clients to any purchaser. That meant the plaintiff would have great difficulty selling the business in the first place.

84 In late 2004 or early 2005, the plaintiff approached Mr Sutherland about the company then known as Zap TV, which was the pre-cursor to Ice TV. In consultation with Mr Sutherland, the plaintiff helped save Zap TV’s core assets by having that company placed into administration and being involved in setting up the new company, Ice TV, in which the O’Brien family were substantial investors.

85 Mr Sutherland is a director of Ice TV and he said that both his and the plaintiff’s involvement was more in the nature of interested shareholders rather than managers. The company has a chief executive officer, chief technical officer and a full compliment of staff. Mr Sutherland and the plaintiff’s role was more in the nature of a strategic one in each case, generally overseeing the company’s operations and attending regular director’s meetings. These director’s meetings, during the period February 2005 to December 2005, were held approximately once every two weeks and their duration was between one and two hours. Mr Sutherland described the plaintiff’s role as that of a strategist, and he was a good one at that.

86 Mr Sutherland said that in December 2005 the company made a decision to raise capital because it was losing money, so a decision was made to issue a prospectus and raise money from the public. A lot of work went into that and Mr Sutherland and the plaintiff started to spend more time in this business than they had before. His evidence was that both he and the plaintiff did between three to five hours a day for a couple of days a week. As a result of this involvement, Mr Sutherland observed that after an hour or two the plaintiff became “Quite tired and it started to affect him. He became illogical, hard on people and grumpy, and a little bit difficult to work with” (T300.3). Moreover, the plaintiff lost the plot, so to speak, by focussing on details that were not important. This disrupted the progress of the proposed public float and upset the company’s staff. Mr Sutherland described the matter more particularly as follows (T300.19):

“If you had him for an hour in the morning he was usually pretty good, but if you’d done four or five hours, and then 6 o’clock in the evening or something, he was quite muddled in his thinking and just difficult to deal with really”.

87 In March 2006, after a due diligence meeting had taken place and Mr Sutherland had received calls from staff threatening to resign, he spoke to the plaintiff and told him that the plaintiff’s involvement in the company was becoming untenable because the company was facing outright revolt from both the directors and the staff, as well as the broker involved in the prospectus. Mr Sutherland said he spoke to the plaintiff for several hours about this issue and the plaintiff was devastated because he had not realised the effect he was having on people and what was happening. Mr Sutherland convinced the plaintiff to stand down and reduce his involvement in the business because it had been counter productive. Mr Sutherland said the plaintiff accepted his advice, although he was very upset. He went and saw his doctor the next day and then tendered his resignation as chairman, remaining as a director to protect his family’s investments.

88 To sum up, in terms of how the plaintiff is now, Mr Sutherland said that compared with what he was like in 1989 (T301.38):

“In short periods, he’s still a very bright, good strategic thinker. As soon as it goes more than an hour or two, he just basically starts to deteriorate and if – at the end of five or six hours, he’s really quite muddled in his thinking.”

89 The plaintiff’s behaviour manifested itself in grumpiness, tiredness, abrasiveness and behaving illogically.

90 The insurance policies entered into between the plaintiff and ATG on the one hand and ING on the other, are commercial contracts and the ordinary rules of interpretation apply to their construction. A business like interpretation is required (Willkie v Gordion Runoff Limited) (2005) HCA 17), although the starting point is a literal or liberal construction which as much as possible favours the insured “so far as the ordinary and natural meaning of the words … permits this to be done” (Australian Casualty Co Limited v Frederico (1985 – 1986) 160 CLR 513 at 520-521 per Gibbs CJ).

91 With this in mind, it is relevant to turn to the definitions in the policies which are relevant to the issues in the case.

92 The expression “Total Disability” is defined in clause 2.10 of the Plaintiff’s Policy and clause 2.13 of the ATG Policy in substantially similar terms, although the ATG Policy contains a further definitional provision as set out below.

93 The expression “Total Disability” means:

· “Your inability to do all the substantial and material acts necessary to the conduct of your

regular occupation in your customary and usual manner; and

· You are not engaged in any gainful occupation.”

94 Under the ATG Policy the further definitional provision is in clause 2.13.3 and it is relevant to the definition of both total disability and that of partial disability whereby:

“All the ‘substantial and material acts’ necessary for the conduct of your regular occupation may, at your option, be interpreted as ‘the important duties of your regular occupation’ or ‘each and every duty of your regular occupation.”

95 ING submitted that the plaintiff had not been totally disabled as he had not been unable to do all the substantial and material acts necessary to the conduct of his regular occupation in his customary and usual manner. Alternatively, ING submitted that the plaintiff had not been totally disabled because, at all material times, he had been engaged in another gainful occupation.

96 ING pointed to the fact that prior to 1998 the plaintiff generated significant income from his activities as a recruitment consultant. As I understood ING’s submission, in the context of the Court’s determination, it was that, notwithstanding the plaintiff’s evidence, he was still capable of performing one or more of the substantial and material acts of his recruiting and consulting work. During the period 1998 to 2001, ING submitted that the plaintiff, by trading shares through ATG, “generated a significant profit during that period from such activities. The level of trading undertaken by (the plaintiff) during that period was not just to dabble in his investments, but rather to undertake significant volume in terms of money in shares. It was a business successfully conducted by (the plaintiff) during that period” (para 29 of counsel’s written submissions).

97 ING submitted that the Court should find, that as a result of the plaintiff’s share trading activity, that he was engaged in a gainful occupation. ING submitted that between 1998 and 2006 the plaintiff, through ATG, was involved in 200 share transactions, in round figures $5 million in purchases and $7 million in sales. This meant that the plaintiff was “no mere occasional investor. Further, ATG has continued to operate as a business through that time. As the financial reports and tax returns of ATG disclose, ATG has recorded profits and losses, claimed expenses, claimed depreciation and paid dividends” (para 65 of counsel’s written submissions). It was submitted as a consequence that the plaintiff had received “considerable benefit from ATG continuing to operate as a business during this period by way of tax effective structuring of his affairs” (para 66 of counsel’s written submissions). ING also submitted that during the period in which the plaintiff and Mrs O’Brien owned the Echoes Hotel at Katoomba that the plaintiff was more than a passive investor and because of the various activities he gave evidence about the Court should determine “he was engaged in a gainful occupation from which he made a significant gain” (para 68 of counsel’s written submissions).

98 Although ING asserted in para 69 of counsel’s submissions that the gain was both earned and received during the 2004 year, it also submitted in para 71 that the plaintiff earned money from working in the hotel by writing off losses during the period 2002 to 2003 and by receiving the sum of $650,000 recorded as goodwill upon the sale of the hotel. ING submitted there was no explanation for the increase in the value of the hotel business other than through the efforts of the plaintiff and his wife, who turned it into a profitable business. It was submitted that the efforts of the plaintiff, in the nature of strategic development, looking at profit and loss statements and so on, was personal exertion and thereby the pursuit of a gainful occupation. The amount of $650,000 therefore should be treated by the Court as earnings for the purpose of the policies and was consistent with the ordinary meaning of the words in the policies.

99 ING further submitted that the plaintiff and Mrs O’Brien received in excess of $900,000 during 2004, recorded as shareholder loans (see exhibit 7) and that neither the plaintiff nor Mrs O’Brien had satisfactorily explained to the Court why this amount was recorded as shareholder loans in the accounts of the partnership which was running the hotel business. Although ING submitted that the Court ought take these amounts into account under the policies in calculating the plaintiff’s earnings, there is, in my opinion, no proper evidentiary basis for it to do so.

100 Apart from the foregoing, ING submitted that the plaintiff and ATG had not established that the plaintiff was totally disabled for the period September 2003 to date, or part of that period. ING submitted that the onus was on the plaintiff to establish that he was suffering from an illness which rendered him disabled and he had failed to do so. Although Dr Skopek said that the plaintiff may be suffering from an anxiety/depressive syndrome in 1998, and Professor Dwyer agreed with this, ING submitted that there was no evidence that the plaintiff suffers from such a condition in 2003-2006. Both Associate Professor Youssef and Professor Lloyd did not consider that the plaintiff suffered from such a condition in 2003-2006. I accept this submission because, for reasons which I will set out below, I am satisfied that the plaintiff’s problem since December 1994 is not related to an anxiety/depressive syndrome.

101 The question remains, though, whether or not the plaintiff suffers and has suffered from chronic fatigue syndrome. ING submitted that the Court should not make such a finding and, in terms of the medical evidence, especially relied on the opinions of Professor Dwyer and Associate Professor Youssef and submitted that the Court ought not accept the opinions of Professor Lloyd and Dr Quittner.

102 There is no doubt that Professor Dwyer, Professor Lloyd and Associate Professor Youssef are all highly qualified medical practitioners and considered to be, amongst their peers, leading experts in the field which involves diagnosis and treatment of chronic fatigue syndrome. In the case of Professor Dwyer, he was quite definite that the plaintiff did not suffer chronic fatigue syndrome (T 105.30), having regard to what he was told about the plaintiff’s level of activity. In his opinion, the plaintiff’s level of physical exertion was such that a diagnosis of chronic fatigue syndrome was contra indicated.

103 Associate Professor Youssef considered that the plaintiff did not have chronic fatigue syndrome according to the accepted medical classification criteria. Taking into account activities of the plaintiff which were put to Associate Professor Youssef, he confirmed in his evidence that a diagnosis of chronic fatigue syndrome was not appropriate (T 245-246).

104 First of all, I am comfortably satisfied that the plaintiff is, and has been at all material times since December 1994, suffering from chronic fatigue syndrome. I now set out my reasons for coming to that conclusion.

105 The plaintiff’s general practitioner, Dr Quittner, although not a leading expert in the field, or as highly qualified as the other three doctors to whom I have already referred, is a general practitioner whose training and experience qualifies him to make the diagnosis of chronic fatigue syndrome. Dr Quittner first reported it to ING on 18 January 1995 (A127) and although he referred to it as “myalgic encephalitis”, this is merely a pseudonym for chronic fatigue syndrome, as Professor Dwyer confirmed when he gave evidence at T 103.27. Dr Quittner, on making this diagnosis, advised the plaintiff to take time off work. Thereafter, Dr Quittner has continued to treat the plaintiff. Compared with the other doctors, Dr Quittner has had the benefit and advantage of regularly observing the plaintiff for a period of more than 11 years. Importantly, Dr Quittner’s diagnosis of chronic fatigue syndrome has not changed, as demonstrated by his clinical notes (exhibit 5) and reports in evidence at A150, 197, 201, 224, 299 and 304. Moreover, Associate Professor Youssef fairly conceded that general practitioners in the position of Dr Quittner were quite capable of making a diagnosis of chronic fatigue syndrome (T 258-259).

106 On 20 June 2001, for example, Dr Quittner reported that “as an inevitable consequence of his illness” the plaintiff was incapable of performing his work on a part-time basis or in a limited capacity (A201). Dr Quittner adhered to this opinion whilst giving evidence, notwithstanding careful and skilful cross-examination by counsel for ING.

107 Although Dr Robert King, a consultant physician and nephrologist, did not give oral evidence, in his report of 28 June 2001 (A207), Dr King reported to ING, inter alia, that the plaintiff had symptoms consistent with the diagnosis of chronic fatigue syndrome and it was unlikely that the plaintiff would be unable to return to work in a full capacity. In his later report of 26 March 2004, Dr King expressed the opinion that the plaintiff had suffered from symptoms of fatigue precipitated by mental and physical activity for approximately 10 years. Dr King diagnosed “chronic fatigue syndrome with a possible psychological component” (A265).

108 Dr King did not give oral evidence and in such a case the Court gains more assistance from those specialists and treating practitioners who do give such evidence. As mentioned, Dr Quittner was one.

109 Professor Lloyd also gave oral evidence, prior to which, in his report of 24 April 2006 (A309), Professor Lloyd had expressed the opinion at A313 that, with regard to the plaintiff, as follows:

“I believe this is a typical chronic fatigue syndrome of reasonably long standing, present in static degree, largely uncomplicated by the typical intercurrent conditions of sleep and mood disorder. I could find no clue on history or examination to indicate an alternative medical or psychiatric diagnosis. The illness complex meets the diagnostic criteria for chronic fatigue syndrome. (The plaintiff’s) Report of his functional impairment is supported by his life circumstances and also by the independent report of his wife.”

110 In coming to this conclusion, Professor Lloyd said in cross-examination that he relied primarily on what the plaintiff had told him, on his perusal of Dr Quittner’s notes and records and having had the benefit of considering the reports of Professor Dwyer and Associate Professor Youssef. As well as the history obtained from the plaintiff, Professor Lloyd also took into account laboratory tests, his examination of him and information provided by Mrs O’Brien.

111 As was the case with Dr Quittner, Professor Lloyd also stuck to his guns, notwithstanding the careful and skilful cross-examination of counsel for ING.

112 I accept Professor Lloyd’s opinion and that of Dr Quittner over the opinions of the other experts in this case who have expressed a different or contrary opinion, and, without being exclusive, I am especially referring to Professor Dwyer and Associate Professor Youssef. My reasons for doing so, apart from being satisfied that both Dr Quittner and Professor Lloyd gave evidence in each case in a disinterested way, is that I accept the evidence of the plaintiff, Mrs O’Brien and Mr Sutherland, which in my opinion is consistent with the complaints made to Dr Quittner and Professor Lloyd and the histories each of them recorded. Moreover, in the case of the plaintiff, I found him to be an entirely convincing witness whose evidence was compelling. The plaintiff is an intelligent man. He listened carefully to the questions that he was asked and in my opinion, apart from a few minor exceptions, the plaintiff answered those questions in a straightforward way. In my assessment, he was completely telling the truth, he was not exaggerating in any way, shape or form and I am satisfied that he has suffered from all of the symptoms about which he gave evidence and that his activities have been restricted and limited in the way about which he gave evidence. My own observation of the plaintiff whilst he was giving evidence was that he was struggling at times, contrary to what has been submitted by counsel for ING in his written submissions. It was obvious to me that after an hour or so in the witness box things were getting more difficult for the plaintiff. In my assessment, the plaintiff was having to push himself hard to concentrate in order to answer the questions that were being put to him.

113 Although it was submitted that the plaintiff was untruthful in terms of what he told Professor Lloyd, I reject this submission. The plaintiff answered Professor Lloyd’s questions honestly. In this respect, although much was sought to be made about the lack of information provided to Professor Lloyd about the plaintiff’s activities on board his yacht, the fact of the matter was, in my opinion, and I am so satisfied, the activities were not vigorous because of the set up on the yacht. Effectively, the plaintiff could sail it by pushing buttons and the reality was a lot of the time the plaintiff spent on the yacht was in the nature of leisure activity. To the extent that there was some ocean racing involved, I am satisfied that this activity was minimal, that there was not a lot of exertion involved and, in any event, the plaintiff was pushing himself to do it in order for the family to engage in some sort of recreational activity. The plaintiff frequently took his wife and children with him out on their yacht. The fact that he did so, in my assessment, is not inconsistent with the plaintiff being disabled by reason of having chronic fatigue syndrome.

114 It was urged upon the Court that because Professor Lloyd was not aware of the extent to which the plaintiff jogged, bushwalked and travelled, that this somehow or other undermined Professor Lloyd’s opinion. I reject this submission because again I am satisfied that the plaintiff was pushing himself, because he is a driven man, to do the jogging and bushwalking in the vain hope that he might recover from his disability. He played golf only occasionally and limited himself to nine holes on a straightforward course. So far as the overseas trip was concerned, this was a one-off situation and I am satisfied the plaintiff had to push himself while he was away from home. I am satisfied about these matters because, consistently throughout the last nearly twelve years, whilst he has been consulting Dr Quittner, the plaintiff’s complaints have remained the same.

115 As mentioned, I have also taken into account Mrs O’Brien’s evidence. She impressed me in the way in which she gave her evidence in a straightforward way. Her evidence was consistent with that of the plaintiff and her whole evidence had a real ring of truth about it.

116 Mr Sutherland, also, had no reason to be untruthful. I am satisfied he gave his evidence honestly and did not exaggerate in terms of the observations he made of the plaintiff. I have found his evidence about the plaintiff’s poor performance whilst being chairman of Ice TV to be particularly persuasive and convincing.

117 Apart from preferring Professor Lloyd and Dr Quittner over the defendant’s doctors for the reasons I have already given, another, and separate reason for me not accepting Associate Professor Youssef is that I regard his opinion as being unsoundly based on his assessment of the plaintiff as a malingerer. Associate Professor Youssef’s precise answer to the question, when pressed on this issue, was as follows (T 265.6):

“I think there were elements of malingering, yes.”

118 This assessment of the plaintiff by Associate Professor Youssef is, of course, entirely inconsistent with the Court’s assessment of the plaintiff.

119 I now turn to consider the first question posed for the Court’s determination, namely, whether the plaintiff has been totally or partially disabled for the period September 2003 to date, or part thereof.

120 I have already set out earlier in this judgment the definition of “Total Disability” under the Policy. In that respect, I am comfortably satisfied that as at the date of the Plaintiff’s Policy and the ATG Policy, the plaintiff’s “regular occupation” within the meaning of the total disability definition was and still is the occupation of recruitment personnel consultant, operating in the technology area, about which he gave evidence. I am satisfied it is the occupation which the plaintiff had been pursuing for some years before the inception of the policies and the one that he continued to pursue for some considerable time after their inception. I am further satisfied that this occupation is the only “regular occupation” which the plaintiff endeavoured to pursue after the onset of his disability in December 1994. I am comfortably satisfied that the plaintiff, although he sought to revive this occupation on a number of occasions, through no fault of his own, did so unsuccessfully. The plaintiff was a person who was driven to achieve and work very hard and I am satisfied that he was unable to continue ATG’s business as a personnel recruiter because of the chronic fatigue illness that was dogging him.

121 By reason of my finding that the plaintiff has chronic fatigue syndrome and the acceptance of the evidence of all the lay witnesses and the opinions of Professor Lloyd and Dr Quittner, I am comfortably satisfied that the plaintiff has been unable to do all the substantial and material acts necessary to conduct this regular occupation in his customary and usual manner, that is, in the way in which he gave evidence about how he performed that occupation prior to the onset of chronic fatigue syndrome in December 1994. I have set that out in detail earlier in this judgment. In coming to this conclusion, I have interpreted the expression “inability to do all the substantial and material acts …” as one which refers to an inability to perform every one of the substantial and material acts necessary for carrying on the plaintiff’s occupation in his customary and usual manner, so that inability to perform one or more of those substantial and material acts has meant that the plaintiff is unable to perform all of those acts.

122 In my opinion, the additional definitional provision in the ATG Policy set out earlier in this judgment does not take matters any further in favour of ING. It follows from the Court’s findings that it is satisfied the plaintiff is not able to perform the “important duties of his regular occupation” and that he is not able to perform “each and every duty” of that regular occupation.

123 This is not the end of the matter because ING submitted, as mentioned above, in the alternative, that the plaintiff had a gainful occupation whilst engaged in share trading activity, that the efforts of the plaintiff in running the Echoes Hotel in partnership with his wife amounted to personal exertion and the pursuit of a gainful occupation, and, in effect, the plaintiff has again been involved in a gainful occupation, with reference to Ice TV, by “turning around a failed company. He hopes to achieve a considerable gain. Again, that is his choice. He has not, as a result of his condition, been forced to undertake such a venture” (para 85 of counsel’s written submissions).

124 In my opinion, the concept of a “gainful occupation”, in the context of the two policies in question, is an occupation which produces, month by month, during which any benefits are claimed, an income to the plaintiff. Neither policy is concerned with the insured’s entitlements to receive non-occupational earnings such as investments, lottery wins or the realisation of capital assets. In my opinion, the concept of “gainful occupation” is concerned with the derivation of income from the pursuit of an organised, sustained and remunerative activity capable of answering the description “occupation”.

125 I accept the submission made on behalf of the plaintiff and ATG that there is a significant difference between being “gainfully” employed and merely “usefully” employed; see Jarrad v Melbourne Metropolitan Railways (1978) 21 ALR 201 at 209.

126 In Johnson v IGE Insurance Company (1997) EWCA 1395 (15 April 1997) the Court of Appeal of England and Wales considered that a gainful occupation was one that was capable of generating at least a living wage, or perhaps sufficient profit as the occupation which the relevant insurance was designed to secure. Where the insured had attempted alternative employment as a taxi driver, which proved uneconomical, it was held that such an activity did not constitute a similar “gainful occupation”.

127 In Abacus Consultants v National Mutual Life of Australia (2003) SADC 135, a case involving an accountant who suffered a low back disability, the insured had pursued a number of unsuccessful business ventures since the demise of his own business. The insurer submitted that although such ventures were not profitable, nevertheless they constituted gainful employment. This argument was rejected because the insured had not actually made a gain. The meaning of gainful employment was said to be “an occupation or employment from which a wage or some profit is derived” (para 14).

128 In Bensky v Mercentile Mutual Limited (1999) 22SR (WA) 144, the Court held that the plaintiff’s involvement in certain passive investment activities, whatever their taxation consequences, did not result in him being engaged in a gainful occupation. In that case the plaintiff had traded in shares and futures and made some profits, but this still was not held to be a gainful occupation.

129 I accept the submission of the plaintiff and ATG that the concept of “gainful occupation” within the definition of total disability should be considered in the context of the definition of partial disability. A person who has suffered from total disability but who is thereafter “engaged in an occupation” will enjoy an entitlement to partial disability benefits where, because of his condition, he is “earning less” than his pre-disability income. That provision, and the formula for calculating the amount of a partial disability benefit, plainly indicates that there will in each relevant month be a certain sum ascertainable as the insured’s “monthly income” (“B”), which will be capable of being subtracted from the indexed amount of the plaintiff’s pre-disability income (“A”) to produce the relevant calculation of the proposition of agreed monthly benefit.

130 This “monthly income” is defined in various ways in terms which involve income derived from “personal exertion” or remuneration by way of salary, fees or commissions. I accept the submission that it is only receipts or earnings of this kind, which accordingly disqualify a total disability benefit and at the same time facilitate calculation of a partial disability benefit, that give meaning or content to the expression “gainful occupation”. I accept the submission, that, in short, this expression means it is an occupation from which income is derived from personal exertion, if self employed, or remuneration is earned by way of salary, fees or commissions if employed (see clause 2.6 of the Plaintiff’s Policy and clause 2.7 of the ATG Policy).

131 In my opinion, the benefits under the policies are designed to secure a regular replacement income for an insured, allowing, in appropriate cases, some credit to ING against this liability for monthly benefits if the insured has earned anything in the nature of a regular replacement income. I am satisfied the policies are not intended to touch upon investment or self-improvement endeavours which an insured might undertake apart from and addition to the insured’s regular periodic income earning occupation. I have taken into account the fact that clause 12 of both policies makes it clear that the only “other monies” which would go in reduction of the agreed Monthly Benefit are payments such as salary, wages, workers compensation payments, social security payments and other legal entitlements under certain sorts of disability policies. On this basis, I do not consider it was the intention of the parties that ING could reduce either the entitlement to or the amount payable as benefits under the policies in consequence of the insured’s receipt of other financial benefits of a wholly different character to those which have been identified. As well, the ATG Policy makes it clear that only receipts of the defined character, which, if paid as a “lump sum” are authorised to be averaged to calculate an equivalent monthly amount.

132 In relation to the plaintiff’s share trading activities, I am satisfied that the plaintiff did not spend much time doing it. He left it up to the broker. Moreover, it was the sort of investment activity he could have engaged in during the height of his hard working 12 hour day as a technology recruitment expert. In other words, it was an investment endeavour and not an occupation.

133 In relation to the plaintiff’s involvement in the Echoes Hotel business, the work done by the plaintiff in the business was of a minor nature on an ad hoc basis. It involved no real personal exertion and the plaintiff was not paid any salary or wages for it. As with the share trading, the plaintiff’s investment in the hotel was optimistically realised when a purchaser came along and was prepared to pay a price for the business which resulted in a capital gain to the plaintiff and Mrs O’Brien. This was an advantageous realisation of the value of a capital asset. It was not income arising out of the plaintiff’s personal exertion.

134 In relation to the plaintiff’s activities in the Ice TV investment, the plaintiff has not received any money from the company or other remuneration other than reimbursement for telephone and incidental expenses incurred in his capacity as a board member. The evidence went no higher than suggesting that, if the public float was successful, the plaintiff was expecting to receive director’s remuneration of $30,000 per year. This has not yet happened.

135 I am therefore comfortably satisfied that the plaintiff’s activity in buying and selling shares, his involvement in the Echoes Hotel business and his activities as first of all chairman and then director of the board of Ice TV, did not constitute a “gainful occupation” within the meaning of that expression in either policy, because, first, none of the activities in buying and selling shares and the involvement in the Echoes Hotel business constituted an “occupation”. Secondly, the gains which ING submitted were received by the plaintiff and/or ATG from these activities and from his involvement in Ice TV in any given month were neither income derived from the plaintiff’s personal exertion, nor remuneration earned by the plaintiff by way of salary, fees or commissions.

136 In the calculation of the total disability benefit the plaintiff’s pre-disability income is relevant in the sense that such monthly benefit cannot exceed 75% of that pre-disability income.

137 The plaintiff’s Pre-Disability Income is his monthly income averaged over one of the financial years within three years immediately prior to suffering a total disability (clause 2.8).

138 Total disability benefits were first paid (after a qualifying period) with effect from December 1994, from which date I am comfortably satisfied the plaintiff has suffered from chronic fatigue syndrome. The results for the plaintiff’s business for the financial year ended June 1994 are recorded in ING’s investigator’s report made in 1995 (A338). Upon this basis, I am satisfied that the monthly figure of $24,744.00 represents the plaintiff’s pre-disability income.

139 The pre-disability income is itself to be increased by the indexation factor (defined by reference to the percentage increase in the Consumer Price Index) but with a cap (see clause 5.4). I accept the submission that this indexation is obviously necessary and appropriate in the light of the fact that the policy contains (in schedule 2) an “index linking option” whereby all monthly benefits are increased by the relevant indexation factor, and if the pre-disability income were not itself so indexed the cap of 75% of its original amount would wholly negate the effect of indexation of the monthly benefit.

140 I am therefore comfortably satisfied that the plaintiff has been totally disabled since 8 December 1994 and that the plaintiff and ATG are entitled to recover, in each case, from September 2003 to the date of judgment, the Monthly Total Disability Benefit to the full extent of the sum insured under each policy, increased by the Indexation Factor as defined but subject to the cap of 75% of the pre-disability income, as indexed.

141 It follows from those reasons that the plaintiff and ATG are each entitled to recover the amounts paid by them for premiums which they were bound to waive plus, in ATG’s case, underpayments amounting to $38,790.

142 To enable the parties to do the calculations, I stand these proceedings over before me at 10am on Tuesday 29 August 2006. I direct the plaintiff to then bring in Short Minutes of Order which reflect these reasons and so Judgment can be entered.

143 In terms of costs, the plaintiff and ATG are entitled to recover these on the usual party/party basis, but if either party wishes to contend otherwise, I will hear submissions on the next occasion.

144 I direct that the exhibits be retained in the Court Registry for six weeks.