Banovic v United Super Pty Ltd - [2014] NSWSC 1470 - NSWSC 2014 case summary — Zoe

NSWNSWSC

Banovic v United Super Pty Ltd

[2014] NSWSC 1470

Supreme Court of NSW|2014-02-21|Before: Hall J

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Court

Supreme Court of NSW

Decision date

2014-02-21

Before

Hall J

Source

Original judgment source is linked above.

Judgment (36 paragraphs)

[1]

Introduction 1The plaintiff, Milko Banovic, presently aged 53 years, was working as a formwork labourer when he was injured in an accident on 23 October 2006. He claims against the first and second defendants a Total and Permanent Disability ("TPD") benefit in the amount of $100,000. He also claims an order for interest on that amount. 2The first defendant, United Super Pty Limited is the Trustee of a superannuation fund, the Construction and Building Unions Superannuation Fund ("the Trustee"). The fund was established to provide superannuation benefits for employees in the building and construction industries. 3The plaintiff became a member of the superannuation fund on 29 January 2003. His claim is based upon the proposition that his asserted entitlement to the TPD benefit was insured by the Trustee taking out the Group Life Policy ("the Insurance Policy") with the second defendant, Hannover Life Re of Australasia Ltd ("the Insurer"). 4Benefits payable under it were the subject of cover under an Insurance Policy issued by the Insurer. 5The initial claim made by the plaintiff for the TPD benefit was declined on or about 31 January 2011. Following decisions by the Trustee and the Insurer to decline the claim, the plaintiff supplied further information on 24 January 2012 and 4 October 2012. The claim was again declined. 6On 31 January 2011, the Insurer's Claims Assessor, Sharon Maharaj, wrote to CBUS Administration advising that after reviewing all available evidence "... we are of the opinion that Mr Milko Banovic is not totally and permanently disabled within the policy definition." 7Details of the claim and medical reports and other material considered by the Insurer were referred to in the letter. 8As a consequence of the accident on 23 October 2006, the plaintiff suffered injuries to his left upper limb. He additionally alleged that injuries were suffered to his left shoulder, cervical spine and median nerve: Amended Statement of Claim at [9]. I note that he is right handed. 9As a result of the injuries sustained in the accident, the plaintiff's contention was and is that he suffered total and permanent disablement within the meaning of that expression as set out in the Trust Deed of the Fund and the Insurance Policy. 10The basis upon which the plaintiff's claim was first declined in 2011 was that, notwithstanding the fact that examining medical practitioners considered that the plaintiff was not fit to return to his pre-injury occupation which involved heavy labouring work, there was other work for which he was suited by reason of his education, training and experience which he was able to perform: See letter from the Insurer to the Trustee dated 31 January 2011: Exhibit A1 at p 414. 11The relevant provisions of both the Trust Deed and the Insurance Policy essentially provided that in order to be eligible for payment of the TPD benefit, both the Trustee and the Insurer must form an opinion, after consideration of medical evidence satisfactory to them, that the claimant was unlikely ever to be able to engage in any occupation for which he/she was suited by reason of his or her education, training or experience. 12Although it was clear on the medical evidence that the plaintiff was not fit to return to heavy labouring work, the Trustee and the Insurer concluded that there was other work for which he had a retained capacity. 13The claim proceeded by way of Amended Statement Claim filed on 14 February 2014. The plaintiff relied upon his affidavit sworn on 19 April 2013 together with medical and other material contained in the Joint Court Book, volumes 1 and 2 (Exhibits A1 and A2).

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Overview of the Claim 14The defendants had made application by way of a Notice of Motion filed 14 February 2014 for a separate determination of the stage one and stage two issues namely, whether the decision to decline the claim was vitiated by error, and then, whether in the court's opinion, the plaintiff is entitled to payment of the TPD benefit. I declined to make an order as sought and the proceedings were stood over. The defendants renewed their application for a separate determination. 15Upon consideration, I did not consider that it would be desirable, appropriate or necessary for the two stages of the proceedings to be separated, but that they should be heard at the one time and determined in a single final judgment. A single hearing and a single determination, in my opinion, conforms with the requirements of s 56 of the Civil Procedure Act 2005 stating that the overriding purpose of the Act and the Rules of the Court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. A single hearing and determination gives effect to that overriding purpose. 16The relevant provisions of both the Trust Deed and the Insurance Policy relevant to the plaintiff's claim provided that in order to be eligible for the TPD benefit, both the Trustee and the Insurer must form an opinion, after consideration of medical evidence satisfactory to them, that the plaintiff was unlikely ever to be able to engage in any occupation for which he was suited by reason of his education, training or experience. 17There was no dispute, and on the medical material it was clearly satisfied, that the plaintiff was unable to return to his previous employment as a labourer. 18In the defendants' written submissions it was properly stated that there are two stages to the inquiry involved in the present proceedings. At the first stage, the plaintiff was required to establish that the decisions of the Insurer and Trustee to decline his claim were decisions that no reasonable person could have come to on the evidence then before them. It was submitted that the touchstone of this inquiry is "unreasonableness" and that it is not the function of the Court to decide whether it would have reached the same decision. 19The second stage of the inquiry only arose if the Court determined that the decisions vitiated by relevant error. The Court would then consider independently whether the plaintiff met the requirements of the TPD definition. 20The challenge to the decision at the first stage of the inquiry is restricted to a consideration of the material that was available to the Insurer and the Trustee at the time of the relevant determination. Volume 1 of the Joint Court Book (Exhibit A1) contains the materials relevant to the first stage of the inquiry. 21There is no such limitation or restriction on the material that the Court may consider at the second stage. The Court is not restricted to the material that was before the Insurer and the Trustee. Accordingly, Volumes 1 and 2 of the Joint Court Book together contain the materials relevant to the second stage of the inquiry. 22Accordingly, it is first necessary to examine the material that was before the Insurer and the Trustee at the time of the original decision, it being noted that, in accordance with the terms of the Insurance Policy, the date at which Total and Permanent Disablement is to be assessed is a date which was six months after the incident giving rise to the claim. The defendants' submission was that as at that date, the plaintiff was capable of working part-time in work that did not require lifting more than 10kg with his left hand: Defendants' Outline of Submissions at [53].

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(a) Documents Relevant to the Original Decisions 23The primary decisions (and the reasons for decision) of the Insurer and the Trustee were: (a) The decision contained in the letter dated 31 January 2011 by the Insurer by its Claims Assessor, Sharon Maharaj (Joint Court Book, vol 1 at pp 414-422). (b) The decision of the Trustee, by its Assessor, Toni Mitrevski dated 9 March 2011: Joint Court Book, vol. 1 at pp 434-439. 24The following documents were included in the material before the Insurer and the Trustee at the time of their original decisions: (a) A Member Statement completed by the plaintiff dated 19 October 2009; (b) Medical reports from General Practitioners (Drs Pukanic and Tomasevic), hand surgeons (Drs Lawson and Meares) and orthopaedic surgeons (Drs Bodel, Faithfull and Dixon); (c) Radiology reports (an x-ray and MRI scan of the left wrist, an MRI of the cervical spine, an ultrasound of the left shoulder and a bone scan); (d) A Case Closure Report dated 28 August 2009 by a rehabilitation provider, Konekt, which was engaged by the workers compensation insurer; (e) Other information provided by the plaintiff in support of his claim which included: "ETE" (education, training and experience) and Occupational History forms dated 29 October 2009, medical report forms completed by the plaintiff's general practitioner, income tax returns and notices of assessment and letters from the plaintiff's solicitors providing limited additional information in relation to the plaintiff's return to light duties after the accident and termination of his employment. 25On 31 January 2011 the Insurer first declined the plaintiff's claim. 26The submissions for the plaintiff challenged the adequacy of the summary of the medical reports set out in the Insurer's letter of 31 January 2011, including in relation to the summary of Dr Lawson's report dated 4 November 2008 (Exhibit A1 at p 357). 27Dr Lawson and other medical practitioners assessed a significant loss of strength in the plaintiff's left wrist. Dr Lawson in the above report stated: "... His grip strength however was markedly decreased, with only 18 kilos on the left compared with 50 on the right." (at p 357) 28However, in the short summary of Dr Lawson's report of 4 November 2008 contained in the Insurer's Hannover's letter dated 31 January 2011, there is no reference to Dr Lawson's assessment. The only reference to the loss of strength was to Dr Lawson's later observation that the plaintiff would benefit from therapy "to try and improve his grip strength": Exhibit A1 at p 418. 29The submission for the plaintiff was that his uncontested loss of grip strength was and is a significant aspect of the plaintiff's disability and that the Insurer's letter included "selective extracts" and did not represent "a fair and even handed consideration": T 10:15-16, 20 February 2014. 30The Insurer's letter of 31 January 2011, it was submitted, contained material error by including under the subheading "Member's education, training and experience" a reference to "Forklift Licence". The licence was not one that had been held by the plaintiff before the accident. It was acquired subsequent to it. On the proper test to be applied in determining total and permanent disability (referred to below) it was submitted it should not have been included as a relevant aspect of the plaintiff's "education, training and experience". The plaintiff had not, in any event, undertaken any work as a forklift driver. 31The Insurer's claims assessor also included as relevant to the issue, of "education, training and experience", a reference to "Process workers [sic] 2002-2003". The evidence established that the plaintiff had little experience or training as a process worker before his accident. Following the accident he was given some hours trial work packing CDs. It was accordingly submitted that the assessor's analysis was affected by material error, firstly, in bringing into account "Forklift Licence" as a relevant qualification and, secondly, listing process work as relevant employment experience. 32It was further submitted that errors such as these had influenced the ultimate decision later recorded by the Insurer (at Exhibit A1, p 421) wherein the assessor, Ms Maharaj, concluded that the jobs of "Light Packer", "Delivery Driving" and "Forklift Driver" were suitable employment occupations for the plaintiff. 33The first decision made on behalf of the Insurer is set out in Exhibit A1 at pp 421-2. There, it is recorded: "There is medical consensus that Mr Banovic is unfit to return to work as a Labourer, however medical information on file supports that claimant is fit for suitable duties. We note advice from claimant - Yes I plan to return to work, I am currently looking for work which suites [sic] my current physical condition. - I can do anything with my right hand, I can only do minor things with left. Claimant [sic] solicitors also confirmed that Mr Banovic has applied for forklift and delivery driver positions, however he has not been successful in obtaining such employment due to his injuries and restrictions. We further note that advice from treating specialist Dr Lawson and Dr Meares that they [sic] were no sign of wasting in the hand. He also has some calluses over his palm, indication [sic] that the hand is being used to some extent. We note Mr Banovic was learning English. Whilst he may have some difficulty, we do not consider this a barrier in obtaining employment. He has been able to obtain employment in the past and obtain a forklift licence. Suitable alternative occupations, for which the member is reasonably fitted by education, training or experience, and in keeping with his medical restrictions include but are not limited to: - Light Packer - Delivery Driving (ie, Local Restaurant, Medical Pathology) - Forklift Driver These occupations are non-skilled and any training done is on the job as part of the process. Therefore based on all available evidence, the member does not meet the policy definition for Total and Permanent Disablement. The obligation to provide information establishing an entitlement to the TPD rests with the insured. The evidence does not persuade Hannover Life Re to reach an opinion that the member is totally and permanently disabled in line with the policy definition. Please ensure that a copy of our decline letter is provided to the member or their representative to assist them to understand our decision to decline their claim." 34The fundamental submission for the plaintiff was that in making its decision to decline the claim the Insurer had posed for itself the wrong question: T 10:45-50, 20 February 2014. The question, it was observed, was not whether the plaintiff is fit for suitable duties. The question in accordance with the terms of the definition of Total and Permanent Disablement was whether the plaintiff was likely to engage in paid work having regard to, his education, training and experience before the accident. In addressing that question it was submitted that real and genuine consideration had to be given to a number of matters. These included the nature and level of the plaintiff's impairment, his limited English language skills, the availability of particular jobs suggested by the Insurer as falling within the definition, and competition for such jobs in the employment market. These matters, it was submitted, had not formed part of a proper consideration of the claim by the Trustee or the Insurer. 35In the submissions for the plaintiff it was noted that the determination of the Insurer was made upon the basis that the plaintiff was "fit for suitable duties". The contention for the plaintiff was that that was not the test required by the terms of the Insurance Policy. 36It was further submitted for the plaintiff that the opinion to be formed on the issue of TPD is one that had to be formed based on an assessment of the relevant capacity or incapacity as at the time of the assessment, and not after re-training. That, it was contended, arises by reason of the provisions of subclause 1.3.1 of the Insurance Policy. The assessment was one that considered the work: "... for which the Insured Person is reasonably fitted by education, training or experience - qualification by education, training or experience which a member may or may not be able to obtain in future is not to be taken into account": Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300 per Hungerford J at 329. (emphasis added)

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Plaintiff's History 41The following matters were established by the plaintiff's affidavit evidence. He was born in Croatia on 13 March 1961. He is therefore, as noted above, presently 53 years of age. He stated that he had no major injuries until he was about 26 years old when he sustained an injury to his right eye. The injury healed but left him with partial loss of vision (approximately 20%) in that eye. That loss, however, did not prevent him from working and leading a normal life. 42He completed eight years of schooling in Croatia and then completed four years of trade school to qualify as a storeman. 43Following his education he undertook the following activities: (i) Service in the Yugoslavian Army for about 15 months. (ii) Employed as a storeman from 1982 to 1993. 44He married his wife on 24 September 1988. They have two children. 45He said that due to the conflict in Croatia in the early 1990s he was forced to move to Serbia where he worked intermittently as a handyman. 46On 31 October 2001, the plaintiff and his family immigrated to Australia. He said that he had almost no English language skills upon his arrival. He subsequently took some English language courses which were of limited benefit. 47In terms of his employment history in Australia, his evidence established the following: (i) His first employment involved process work with Primo Smallgoods. The work involved prolonged standing, bending, lifting and carrying, together with the rapid and repetitive use of both hands. (ii) In February 2003 he found work as a labourer in the construction industry with Formbrace Pty Ltd. This work, though better paid, was much heavier and involved the lifting, bending and carrying of heavy equipment and building materials. 48He upgraded his skills with Formbrace Pty Ltd and by the end of his employment period with the company he was performing duties of a formwork carpenter. He worked with Formbrace Pty Ltd until 17 June 2004 and left for better paid work. 49On 18 June 2004 he commenced working with Westform (NSW) Pty Ltd as a formwork labourer. This was heavy physical work that involved the erection and dismantling of formwork. 50The plaintiff described his health up to 23 October 2006 as very good. Up to that time he had been performing very heavy manual work but stated that he was physically fit and able to do it without difficulty. In his claim for the TPD benefit he described his occupation as "Formwork Laborer" [sic]. His earnings in that employment helped him to purchase a three-bedroom home in a suburb of Sydney. As at the date of the accident he approximated his weekly earnings to be $1,100 (after tax) for six days' work.

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The Accident 51The accident, as earlier indicated, occurred on 23 October 2006. The plaintiff at the time was stripping formwork. He was required to stand on a platform which was approximately one metre off the ground in order to strip 3 metre lengths of formwork located above his head. The job was normally undertaken by two persons. As everyone else was occupied he decided to do the work even though it was very heavy work. 52He said that as he was lifting the formwork clear of supporting jacks, and pulling it towards him, he stepped forward with his right foot to maintain balance. However, when he did so his foot caught on something on the platform. That caused him to overbalance and lose control of the formwork that he was holding. He said he tried to let go of the formwork as it fell, but his left glove was caught on the right wing of the jack and this pulled him off the platform as it fell. 53He said that he fell approximately one metre and landed on a pile of rubble, timber and equipment. He said he remembered falling with his left arm extended and landed heavily on the palm of his left hand. 54He said that he immediately felt pain in his left shoulder and neck. He said the action was witnessed by a co-worker whom he named. 55He was taken by ambulance to Ryde Hospital. He said he had difficulties communicating with staff because of his limited English. 56At the hospital he was admitted and had x-rays taken. He subsequently underwent surgery for the internal fixation of a left wrist fracture. 57He said he was off work for approximately two months following the injury and during that time he continued to experience pain in his left wrist, arm and shoulder as well as in his neck. He also said he experienced numbness and stiffness in his left arm, hand and fingers, particularly his index finger and thumb. 58He returned to work on light duties approximately two months after the accident. However, even though the duties were light he said he had difficulty coping. He said even light duties involved some element of lifting. Lifting anything over a kilogram using his left hand caused problems. He said he also had pain and stiffness in the neck and upper back which was aggravated by physical activity. Further, he experienced numbness and altered sensation in his left hand. 59Apart from that light duty work, he stated that he had not been able to work since finishing up with Westform (NSW) Pty Ltd in 2007 (apart from undertaking a four week work trial in April-May 2008 packaging CDs). He said that this had been the situation notwithstanding his participation in a rehabilitation course organised by the workers compensation insurer. 60On 8 March 2007 he underwent a carpal tunnel decompression to his left wrist and hand. The surgery was undertaken by Dr Lawson. There is evidence that the operation improved the tingling sensation in the left hand but that the plaintiff continued to have problems flexing his fingers. 61Further surgery was undertaken on the plaintiff on 2 October 2007 following a diagnosis that he had triggering of his left index finger: see Dr Faithfull's report, 11 September 2009: Exhibit A1 at p 170.

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The Plaintiff's Injuries and Incapacity 64On the plaintiff's work history, he was required to regularly use both upper limbs in his occupation that involved heavy work duties, but that since his accident and surgical treatment this has not been possible. 65The plaintiff's left wrist injury has consistently been reported on in medical reports as having given rise to symptoms and disability confirmed on clinical examination: (Exhibit A1, Dr P Tomasevic at pp 383-391; Dr Faithfull at pp 168-174; Dr Bodel at pp 178-180; Dr Dixon at pp 352-354; Dr Lawson at pp 356, 357; Dr Meares at p 394). These include: (i) Loss of grip strength in the left hand compared to the right; (ii) Reduced sensation (paresthesia) in the thumb and index finger of the left hand; and (iii) Consistent complaint of pain and exacerbation of pain on activity involving use of the left upper limb, in particular, the left hand, forearm and neck. 66Subsequent to injury and surgery, the plaintiff continued to complain of neck pain and left shoulder pain, including pain in the interscapular region of the thoracic spine aggravated by bending or twisting. 67The medical evidence established, and the Insurer has accepted, that the plaintiff suffers from an ongoing disability associated with his left upper limb which, as at the date of assessment and before and after the date of assessment, has rendered him incapacitated for his pre-injury work as a formworker/labourer. It is also accepted that, before and after the date of assessment, he was unfit for heavy and/or repetitive work involving use of the left upper limb. 68The plaintiff, in more recent years, has also suffered from anxiety and depression associated with his incapacity resulting from injuries and disabilities suffered in the accident on 23 October 2006. His psychological symptoms have been associated with feelings of worthlessness. 69There is no statement by any qualified or treating medical practitioner in any of the reports available at the time of the assessment, or thereafter, stating that the plaintiff's complaints of pain or that pain in his wrist/left upper limb did not have an organic or pathological basis or was not exacerbated by strenuous or repetitive tasks. 70Since his operative procedures the plaintiff has been treated conservatively by analgesic and anti-inflammatory medication as well as some physiotherapy. He has been prescribed and has taken a range of medications for his symptoms. These include Stilnox, Zoloft, Panadol, Osteo Diazepam, Voltaren and Panadine Forte.

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PART B - PRINCIPLES 71Hallen J observed in Lazarevic v United Super Pty Ltd [2014] NSWSC 96 at [113] THAT the words "education, training or experience" are used "both disjunctively and conjunctively" and that: "... The words describe a capacity to undertake a new job based on education, training or experience. They constitute a link between the job and previous education, training or experience" (citing Dargan v United Super Pty Ltd [2011] NSWSC 1316, at [24] (Gzell J).) 72His Honour noted that the duty of a trustee to apply trust assets in accordance with the relevant trust deed is a well-established one. Reference was made to the principles discussed in Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115 by Ball J at [52]-[55] wherein it was observed that in performing the duty to apply trust assets, the trustee is required to inform itself properly of the relevant facts and is required to act in good faith "... on a real and genuine consideration of the material before it and for sound reasons, although it is not obliged to give reasons for its decision ...". 73In Erzurumlu, supra, it was also observed that although a member of the fund is not a party to the contract with the insurer who provides insurance cover to the trustee of a superannuation fund, the member nonetheless has standing to enforce the contract as a beneficiary of the trust which holds the insurance policy as one of its assets. 74Hallen J in Lazarevic at [101] conveniently drew together relevant principles from caselaw authorities, in particular Edwards v Hunter Valley Co-Op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113, at 77,536-7, and Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 as follows: "(a) The insurer must consider, and determine, the correct question or questions. This essentially requires the correct interpretation of the policy of insurance. (b) If the insurer seeks an opinion from an expert, it must provide the expert with all of the information that is relevant to the expert's opinion. (c) Where an expert opinion is sought, the expert must also be asked the right questions. (d) Asking the right questions of the expert, however, does not require the insurer to ask the expert to address specific provisions in the policy. The insurer is itself making the ultimate decision, and not delegating the decision making to the expert. The critical enquiry for the court is whether the insurer, ultimately, has addressed the correct questions either directly, or indirectly with the aid of the expert's opinion, and has taken account of the relevant information either directly, or indirectly, in respect of relevant information assessed by the expert. (e) The insurer is under a duty to act in good faith and to observe fair dealing in respect of both the trustee and the insured. (f) As part of this duty, the insurer must have due regard for the interests of the insured. However, this duty is contractual, not fiduciary. This duty is analogous to the duty of a mortgagee exercising a power of sale of mortgage property. (g) Where a state of affairs governing entitlement of the insured to a benefit is to be determined after a consideration by the insurer, the insurer must act reasonably in considering the matter and in coming to its conclusion. (h) If the view taken by the insurer can be shown to have been unreasonable on the material before it, the insurer's decision can be successfully attacked. (i) If the insurer's decision is successfully attacked, the matter upon which its opinion was required becomes one for determination by the court." 75In Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913, a case concerning the entitlement of a worker to benefits asserted to arise under a superannuation policy as a result of disabilities, Brereton J examined the relevant provisions of the clause that determined a worker's entitlement to such benefits in the following terms 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; Nile v Club Plus Superannuation Pty Limited [2005] NSWSC 55, cf Wyllie v National Mutual Life Association of Australasia [1997] 217 ALR 324; Sayseng v Kellogg Superannuation] (3) In any occupation or work (meaning a recognised occupation, not a special light duties job for injured workers) [Cavill Power v Royale; Dolton v State Authority Superannuation Board [1995] NSWIRC at 159 [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, Fernance)." 76Since 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]. 77In 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." (emphasis added) 78In Lazarevic, 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 Scheme Pty Ltd, 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." (emphasis added) 79In 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." (emphasis added) 80In summary, the definition in clause 1.3.1 of the expression "Total and Permanent Disablement" involves the formation of an opinion on two matters. First, that the insured person is "unlikely ever to be able to engage in any Regular Remuneration Work". Second, Regular Remuneration Work is work "... for which the Insured Person is reasonable fitted by education, training or experience." 81The opinion accordingly in relation to the insured person is to be considered having regard to work for which the insured person "is reasonably fitted by education, training or experience". Those expressions are to be given their accepted meanings. Applying the Oxford Dictionary meanings: (1)The word "fitted" and the expression "fitted by", convey the notion of "suitable or qualified for, to do". (2)"Education" - refers to systematic instruction, schooling or training. (3)"Training" - refers to the act or process of providing or receiving instruction in or for a particular skill, profession, occupation. (4)"Experience" - refers to the state of having been occupied in any branch of study or affairs. 82In the present case the insured person, the plaintiff, had limited primary education, very little secondary education, little by way of post-school training or qualification, with limited experience in Croatia as a storeman and in this country as a process worker and formworker/labourer. He also had, and has, very limited competence in the English language. 83The "formation of an opinion" referred to in subclause 1.3.1, as noted above, is to be applied in a realistic and commonsense way. The matters referred to in [82] are directly relevant to the question as to whether, on the probabilities, there existed "a real prospect", not a theoretical possibility, that the plaintiff, by way of a retained capacity, would be able to undertake work of a different kind from that which he had been performing prior to his accident and disability.

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Plaintiff's Submissions 85The following matters were identified in the plaintiff's submissions as central to his entitlement to the TPD benefit under the Insurance Policy: (i) That the weight of the medical evidence was overwhelming in support of a TPD entitlement. (ii) The Insurer and the Trustee focussed effectively on one report, that of Dr Lawson. Selective extracts from other reports were referred to in their letters declining the claim and did not give sufficient consideration to the medical reports in their totality: T 4:9-13, 20 February 2014. (iii) A central consideration which the Insurer had to take into account, but did not, was the real likelihood of the plaintiff working in the future by reference to his education, training and experience. There needed to be evidence of that likelihood and not mere assertions or theoretical possibilities. (iv) A theoretical possibility that the plaintiff would be able to work as a storeman or a packer is neither a sufficient nor the correct approach to be taken in determining TPD. On the authorities, a practical approach had to be taken to the evidence in considering whether or not there was an actual likelihood of the plaintiff obtaining employment. (v) On the medical evidence contained in the Joint Court Book, volume 1 (Exhibit A1) and available to the Trustee and Insurer, the plaintiff was and is unlikely to be able to undertake the types of work suggested by them. (vi) In making a decision in relation to the plaintiff's TPD claim it was essential that the Insurer formulate or address the questions that the treating and examining medical practitioners were required to focus upon. It was submitted, that in a number of respects, the Insurer relied upon incorrect tests and in their decision-making had regard to irrelevant considerations. (vii) The Insurer in this case, it was submitted, had never asked the medical practitioners to express an opinion by reference to the proper test, namely whether the plaintiff was likely to return to work by reference to his education, training and experience. That was a critical or central consideration. Suggestions by the Insurer as to the possibility of the plaintiff undertaking alternative lighter occupations were not based upon (a) a proper consideration of the terms of the policy, (b) the nature and extent of his disabilities or (c) the availability of such occupations in the employment market. (viii) Insofar as the Insurer had regard to the possibility of the plaintiff becoming a forklift driver, that was a irrelevant consideration. He obtained his forklift licence some two years after the accident. He had not performed such work before (nor had he since). The reliance upon that consideration, it was submitted, in itself impugned the Insurer's decision. 86Mr Weinberger, in his submissions for the plaintiff, turned to the medical evidence contained in Exhibit A1 for the purposes of demonstrating that the evidence relied upon by the Insurer in reaching its decision failed to meet the test and address the relevant considerations required in the determination. 87Further, in determining whether the plaintiff was totally and permanently disabled, what was required to be taken into account (but which was not in this case) was: "... the real likelihood of the plaintiff working in the future in relation to matters by reference to his education, training and experience. And there needs to be evidence of that, not mere assertion or theoretical possibilities". (T 4:17-20, 20 February 2014) 88The opinion expressed by Dr Faithfull, orthopaedic surgeon, in his report dated 11 September 2009, was that: "He [the plaintiff] would be able to do that work [storeman and packer's work] so long as it was the below [sic] shoulder level and did not require him to lift more than 10kg with his left arm" (Exhibit A1 at p 172). 89It was submitted that the difference between a theoretical job and a job that existed in fact was that: "... In the real world, that job doesn't exist, and there's no evidence that a job of that description exists and the consequence of that is to the extent the insurer expressed the view that the plaintiff can work in that form of employment, there wasn't a genuine consideration given, to use the expression of the Court, given to the realities or the practical realities of the situation ...". (T 4:47-T 5:2, 20 February 2014) 90It was further contended that: "The insurer has never asked the doctors to express an opinion by reference to the proper test, that is, whether the plaintiff is likely to work by reference to his education, training and experience. Those are the magic words ..." (T 6:50 - T 7:3, 20 February 2014) 91The test required that specific regard had to be given to the important qualifier: "training, [education and] experience at the time of the injury": T 7:36-38. 92Finally, the Insurer's letter declining the claim recorded: "We note Mr Banovic was learning English. Whilst he may have some difficulty, we do not consider this a barrier in obtaining employment. He had been able to obtain employment in the past and to obtain a forklift licence." (Exhibit A1 at p 421) 93It was submitted for the plaintiff that again the wrong test was applied. Participation by the plaintiff in an English language course after injury did not address the issue "... for which the Insured Person is reasonably fitted by education, training or experience". That was said to be particularly so in the present case. 94It was further submitted that although the plaintiff had participated, post-injury, in a course in an attempt to learn English the Insurer could hardly place any weight upon that fact. The other evidence indicated that he had in fact made little progress in respect of written and spoken English. He remains a person with limited English language skills. I have earlier noted Dr James Bodel's opinion recorded in his report of 25 March 2011 (Exhibit A1 at p 478): "Theoretically he may be able to be retrained in lighter duty work on a part-time basis but he has very poor English language skills and it will be very difficult to retrain him in any durable return to work program." 95A consideration of the evidence in Exhibits A1 and A2, the plaintiff's evidence and the evidence of Dr Ting, strongly supports the conclusion that the plaintiff is significantly incapacitated and has very little by way of a retained capacity. He, in my assessment, falls well within the definition of TPD. The reasons for this conclusion are considered later in this judgment.

[13]

Defendants' Submissions 96The defendants relied upon its written submissions dated 19 February 2014 (written submissions") and its supplementary outline of submissions dated 21 February 2014 ("supplementary submissions"). These were supplemented with oral submissions. 97I will endeavour, without repeating in full the submissions made on behalf of the defendant, to address the principal matters raised therein. 98As noted above, there are two stages of inquiry. The first was that the plaintiff was required to establish that the decisions of the Insurer and the Trustee to decline the claim were decisions that no reasonable person could come to on the evidence which was before them. 99The second stage of inquiry was only reached in the event that the court determined the decision was vitiated. The court would then go on to consider independently whether the plaintiff met the requirements of the TPD definition on the evidence before the Court. 100The primary submissions for the defendants identified the evidence before the Insurer and the Trustee at the time of their original decision: Written Submissions at [14]. 101The defendants' written submissions addressed the plaintiff's background, education, training and experience at [20]-[21] and the medical evidence, in particular, that of Drs Lawson, Meares, Dixon, Tomasevic (General Practitioner), Pukanic (General Practitioner), Dr Faithfull, Dr Guirgis, and the Konekt Closure Report. 102By its abovementioned letter of 31 January 2011, the Insurer documented its consideration of the information before it and the requirements of the TPD definition. It noted that the medical information before it indicated that the plaintiff was fit for suitable duties and that he had applied for forklift and delivery driver positions, although he had not been successful in obtaining employment. 103The Insurer also noted the advice from Drs Lawson and Meares that there had been no sign of muscle wasting in the left hand and that calluses indicated the hand had been used to some extent. It was noted that the plaintiff had been learning English. 104The Insurer also relied upon evidence as to the suggested "suitable" occupations of light packer, delivery driver and forklift driver. 105The Insurer concluded that whilst the plaintiff may have some difficulty with English it had not prevented him from obtaining employment in the past, nor in obtaining his forklift truck licence (in 2008). 106In the defendants' written submissions reference was made to the observations of Young AJ in Chapman v United Super Pty Ltd [2013] NSWSC 592 at [47]. Applying the relevant principles it was submitted that the Court would not find the decisions of the Trustee and the Insurer were unreasonable. 107It was acknowledged that whilst the plaintiff had persistently maintained that he suffered pain and restriction on his ability to lift with his left hand: "... the critical question was whether that rendered him unlikely ever to return to work for which he was suited ..." (Written Submissions at [57]) 108The defendants refuted the submission made on behalf of the plaintiff that the documents indicated "a very one-sided consideration of the material". It was contended that it was apparent that both the Trustee and the Insurer had considered the medical reports, the restrictions referred to in them, the plaintiff's age, the terms of the TPD definition, the date of disablement, the plaintiff's education, training and experience, the barrier to employment presented by his lack of fluency in English and alternative occupations for which the plaintiff was reasonably fitted by education, training and experience. 109The defendants further refuted the submission that had been made for the plaintiff that the occupations considered by them (namely, (i) light packer, (ii) delivery driver and (iii) forklift driver) were "entirely theoretical". 110The defendants relied upon the fact that Konekt had identified as "suitable" the positions of forklift driver and delivery driver and that the plaintiff's solicitors had said that the plaintiff had applied for such positions. 111As to the position of storeman and packer, these had been identified by Dr Faithfull as jobs that were suitable (subject to a lifting restriction of 10kg). 112The submission accordingly was: "... There was therefore evidence before Hannover and the Trustee that this was work for which the plaintiff was suited by reason of his education, training and experience. It was not unreasonable for the trustee insurer to rely on that evidence": Supplementary Submissions at [3]. 113The defendants took issue with submissions made in relation to the plaintiff having obtained a forklift truck licence in 2008. They submitted it was not irrelevant. In support, the defendants sought to rely upon the decision of the Court of Appeal in Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57: Supplementary Submissions at [4]. It was submitted the decision made clear that regard may be had to employment notwithstanding the fact that a short period of study or the obtaining of a qualification may be required. 114In this respect, I note that Mr Dargan had previously been engaged in a driving occupation, namely, employment as a commercial truck driver and that following injury he obtained a taxi driver's licence. It was submitted for the plaintiff that Dargan was a case in which a truck driver became a taxi driver and hence there was sufficient link with the latter work and the work for which he had been reasonably fitted by training and experience. 115Again in relation to the issue of forklift driving, it was submitted that the fact that the plaintiff obtained the licence was relevant evidence on the question of his capacity to actually undertake forklift work: Supplementary Submissions at [5]. It was submitted that the fact that he was able to complete a forklift driving course showed that neither his level of English nor his physical capacity was a barrier: Supplementary Submissions at [5]. 116The defendants responded to the submission that no regard should be had to the plaintiff having undergone English language courses (though these were of limited duration). They submitted that it indicated that the plaintiff had no physical difficulty in attending the course and completing it (five days a week, three hours a day). It was further submitted that this showed that he had a level of English that had not precluded him from obtaining suitable employment in the past. Additional English lessons are to be taken into account against that background: Supplementary Submissions at [6]. 117Issue was taken with the submission that delivery driving work was not within the plaintiff's education, training or employment. The defendants submitted that it was not necessary that an insured person had actual experience prior to injury of delivery driving. They argued that the TPD definition required simply that the work be work which the insured person is reasonably fitted by reason of his education, training or experience. It did not require that he actually have undertaken such work in the past: Supplementary Submissions at [7]. 118The defendants disputed the submission that they had addressed the wrong question because it stated it had considered the "medical information" on file stating the plaintiff was fit for suitable duties but that that information was not related to the requirement "by reason of his education, training or experience". The defendants argued that this ignored context and that express reference had been made by the Insurer to "suitable alternative occupations, for which the member is reasonably fitted by education, training or experience and in keeping with his medical restriction." 119The defendants submitted that the attacks made on behalf of the plaintiff on the adequacy of the reasons for the decisions of the Trustee and Insurer involved "an unduly technical reading of what are intended to be practical commercial documents written by non-lawyers ...": at [10]. 120The defendants further took issue with the submission that the medical evidence was "all one way". The plaintiff contended that this was a summary statement that was overly simplistic and missed the point: Supplementary Submissions at [11]. The defendants argued to the contrary, submitting that the medical consensus was that the plaintiff was fit to return to suitable duties with restrictions, those restrictions being no lifting more than 10kg. 121The defendants sought to challenge the evidence of Dr Guirgis and Dr Dixon in which both doctors stated that the plaintiff satisfied the TPD definition. The defendants submitted that the doctors had given an opinion on what was "the ultimate issue" and that it was apparent from their reports that they had reached their conclusion based on their understanding of the jobs available in the labour market. It was argued that these were not matters within their area of expertise. 122In relation to the second stage of the inquiry, the defendants' submission was that should the Court determine the first stage of the inquiry in the plaintiff's favour (contrary to the defendants' submissions), then the further medical and occupational expert evidence that was not before the Insurer and Trustee must be considered. The supplementary submissions then addressed matters raised in the following assessments: (i) CRS Vocational Assessment (Lisa Berriman, Rehabilitation Consultant); (ii) CRS Functional Capacity Evaluation (Alicia Bartholomeusz, Rehabilitation Consultant and Occupational Therapist); (iii) Konekt Vocational and Functional Assessments, in particular, in relation to a work trial undertaken in April-May 2008; (iv) FCE & Vocational Assessment in respect of a functional capacity and vocational assessment on 8 July 2008; (v) ECA FCE & Vocational Assessment being a further functional and vocational assessment on 9 November 2010 performed by Dr Keller, Occupational Physician and a Belinda Messer, Psychologist; (vi) Dr Ting, Rehabilitation Consultant and Occupational Therapist; (vii) Dr Giblin, Orthopaedic Surgeon, instructed by the Workers' Compensation insurer; and (viii) Dr Dixon, including in particular, a further report dated 23 January 2013. 123Whilst vocational and functional assessments may provide information relevant to a person's residual physical and economic earning capacity following injury, it is important to observe that the assessments undertaken by them were not directed to the fact in issue in the proceedings, namely, the requirements of the definition of total and permanent disablement. Additionally, the assessors, not being qualified medical practitioners, whilst they may provide information based upon their physical assessments, they do not constitute opinion evidence as to a person's capacity in terms of the ultimate issue in the proceedings. 124The specific vocational and functional assessments on which the defendants rely in the second stage of the inquiry in the proceedings are addressed below.

[16]

(b) Relevant Factors in Determining TPD 129It was accordingly incumbent upon the Trustee (as it also was for the Insurer) to consider relevant information and to make reasonable inquiries in order to ascertain: (a) Whether there existed work or employment which the plaintiff was reasonably capable of performing having regard to the nature and extent of his impairment; and (b) Whether such work was available: Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238, per Nettle JA at [66], Redlich JA and Davies AJA agreeing. 130Relevant matters to be considered accordingly included the plaintiff's basic or limited level of schooling, that he had no trade or qualifications, training or experience in occupations such as positions of storeman and packer, courier driving and forklift driving (relied upon by the Insurer) and the fact that he had spent most of his working life in Australia performing heavy manual work. 131The decision of the Victorian Court of Appeal in Alcoa, supra, addressed the following matters:

On the issue of TPD it is necessary in determining what work a claimant can be said to be reasonably suited for by reason of his/her education, training or experience it is necessary to bring into account the claimant's pre-injury work history or occupation(s).
A relatively uneducated person who has been engaged over many years in arduous or heavy physical work (such as a formwork labourer and carpenter), generally speaking, is likely to be limited in terms of the range of work open to him/her, many jobs being beyond his or her particular education, training and experience. 132The range of work open to an injured or impaired employee is, of course, also likely to be limited by his/her post-accident disabilities (including pain and loss of function) and the associated or consequential difficulty in competing in the open employment market. 133Taking all such matters into account, the question in the present case is how likely was/is it that such a person as the plaintiff would be able to find work or an occupation for which he is suited by his education, training and experience, taking into account all the limitations and practical realities of his post-accident situation. 134In Alcoa, the relevant circumstances which the Court took into account were expressed in these terms: "... given what was recorded in the medical reports about Mr Frost's working history and so, as it appeared, that the only work which he had ever known was the 20 years of labouring and forklift driving he had served with Alcoa after leaving school during year 11, it is at least likely, if not the only reasonable view open, that the range of occupations for which he is fitted by education, training and experience is limited to labouring and forklift driving. ... to put it at the lowest, it is difficult to conceive of too many labouring or forklift positions, in or outside Alcoa, which do not involve prolonged or frequent bending, lifting greater than 15 kilograms, using implement such as picks, shovels, sledgehammers and crowbars or driving machinery over rough terrain." (at [67]-[68]).

[17]

(c) Reasonably Fitted by Education, Training or Experience 135In determining whether the plaintiff fell within the definition of TPD it is well-established that a person's capacity to perform special light duties is to be excluded. 136In Diosdado Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583, Nicholas J measured or assessed the suggested capability of the plaintiff in that case undertaking part-time work where the work would adversely impact upon the injured person: "... I find it significant that there was no evidence which identified any form of work which the plaintiff would be capable of performing free of pain, and without the need to take frequent breaks for relief of pain and changes in posture ... As a matter of reality and common sense, it is difficult to envisage the probability of the existence of paid employment for work of that kind. On any view, such work would not be of the kind that the plaintiff is capable of performing by reason of education, training or experience." (At [73]). 137The decision of Nicholas J in Diosdado Sayseng v Kellogg Superannuation Pty Ltd, supra, at [64] is authority for the proposition that the reference to "occupational work" in a totally and permanently disabled policy is taken to mean: "... a recognised occupation, not a special light duties job for injured workers, and must be work which the plaintiff is likely to obtain having regard for the practical realities of [his] situation." 138It has since been held that this is consistent with the principle stated in Dargan at [37]. See also Chapman v United Super Pty Ltd, supra, at [39]." 139Similarly, in Diosdado Sayseng v Kellogg Superannuation Pty Ltd, supra, at [63], Nicholas J observed in relation to the definition of "total and permanent disablement": "It is one to be considered by reference to his existing education, training and experience. The court is required to ascertain what the insured is actually capable of doing with regard to the qualification that the capacity for work under consideration is that for which is reasonably capable of performing by reason of education, training, or experience. If he requires retraining in order to be employable, he is totally and permanently disabled within the definition ..." (emphasis added) 140In Chapman v United Super Pty Ltd [2013] NSWSC 592, Young AJ observed at [32]: "Putting aside situations of de minimus training one does not require a plaintiff to undergo a course of retraining in order to make him or her employable. Even if an injured ballet dancer has the intellectual capacity to go to university, get a law degree and become a barrister, that would not disqualify him or her from being totally and permanently disabled (assuming that they were not able to take any part-time job that was reasonably fitted to his or her then current education, training or experience)." 141In Diosdado, Nicholas J emphasised that the definition requires consideration of whether or not on the evidence it is probable that the insured person would actually obtain work for reward 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, adding: "... 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 ...". (at [64]) 142In Dargan, Bathurst CJ stated that the question of whether a person is reasonably fitted for a particular type of work will always depend on the facts of the particular case: at [37]. Mr Dargan, as earlier noted, had been an experienced truck driver who it could be inferred was familiar with the rules of the road and the demands involved in driving commercial vehicles. He was able to obtain a certificate to drive a taxi without undertaking a test. He was able to comfortably pass the test required as a condition of maintaining the certificate. 143Given his experience with driving heavy vehicles and having passed the necessary test at the time his employment came to an end, he was, the Chief Justice stated, reasonably fitted to carry out the occupation of a taxi driver at least on a part-time basis: at [44]. The plaintiff had demonstrated that he was capable of driving a taxi for up to 20 hours per week.

[18]

(d) The Plaintiff's Pre and Post-Accident History 144In the present case the following factual matters are noted: (i) The plaintiff, as noted at [43] above, had very little education in Croatia. He undertook no formal education or training course prior to the injury in Australia. (ii) He has had, and continues to have, very limited English language skills. (iii) In Australia his pre-injury employment principally consisted of heavy manual work including labouring and formwork carpentry. (iv) He suffered significant injury to his left upper limb in the subject accident. This included a fracture of the distal radius, carpal tunnel syndrome and trigger finger syndrome. He underwent three operations on his left hand and wrist. (v) The plaintiff has suffered ongoing impairment in his left upper limb. This has included, in particular, persisting pain in his left wrist and loss of strength in the left upper limb ("grip strength"): Dr Dixon's Report, 27 October 2010, Exhibit A1 at p 350. (vi) Such impairment, the medical evidence indicates, has continued with pain in the left upper limb along with the neck, and disturbance of sensation in the left upper limb. (vii) Before and following surgery he has been treated on an ongoing basis with a range of prescribed medication for the control of pain. (viii) There was no medical opinion evidence or particular challenge from examining medical practitioners that impugned the plaintiff's claim of significant upper left limb disability. (ix) It is accordingly common ground that the plaintiff has had and continues to have ongoing disability, including in particular, impairment in his left upper limb that has prevented him from undertaking his pre-injury work, labouring work, or manual work requiring physical strength or sustained lifting with that limb. (x) The plaintiff does not hold any trade or other specialised training or qualification in skilled employment. In an attempt to rehabilitate, he, subsequent to the injury, obtained a forklift licence in 2008. He has not undertaken any forklift driving work, before or after the accident. (xi) The plaintiff has been medically assessed as having developed symptoms of depression and loss of self-esteem.

[20]

(f) Assessing the Medical Evidence: First Stage of the Inquiry 146The assessment that follows commences with the following observations in relation to the reports of Dr Richard Lawson. 147Dr Lawson wrote a report to the plaintiff's then general practitioner, Dr Tomasevic, dated 7 July 2008: Exhibit A1 at p 308. This was a follow-up report following the carpal tunnel release operation that he had performed on the plaintiff. Dr Lawson reported an improvement in symptoms and stated that at that stage he would not place any restrictions on the plaintiff's work and that he: "... would let him to do whatever he feels capable of doing. He certainly can return to heavy manual work. I have asked him to come back and see me in around four months time to see how he is settling down." 148It is to be noted that Dr Lawson's assessment and observations in 2008 did not represent a final expression of opinion. That assessment in July 2008 is to be considered in the context of subsequent and ongoing assessments. Dr Lawson's assessment at that time was not consistent with later reported medical opinions concerning the plaintiff's level of disability. 149It is also to be noted that the evidence in these proceedings suggests that a degree of misunderstanding by Dr Lawson arose when he saw the plaintiff before writing his report of 7 July 2008. When speaking to the plaintiff on that occasion Dr Lawson did not have an interpreter available. Accordingly, although the plaintiff was accompanied by his daughter, he was not able to communicate through an interpreter. 150In his later report of 4 November 2008, Dr Lawson noted: "I also think he would benefit from having an interpreter present when he goes for interviews": Exhibit A1 at p 357. 151Dr Lawson also noted in that report that the plaintiff was accompanied by a Mr Petrusevic and observed that the plaintiff "felt that he did not adequately communicate his problems in his last visit on the 7th of July. Today he told me about his symptoms". 152Dr Lawson then proceeded to record a number of symptoms related by the plaintiff and observed that his grip strength had "markedly decreased". He stated that the plaintiff's situation was "a difficult one", that he had been unable to find any "surgically remediable lesion at present" and that his wrist fracture had healed and he had an excellent range of movement with the wrist. He expressed the view that he could benefit from working under the guidance of a therapist "... to try and improve his grip strength". 153A proper assessment by the Insurer and Trustee of Dr Lawson's opinion required consideration of all of the above matters. Dr Lawson's observation of the marked decrease in grip strength alone clearly contradicts the Insurer's statement as to the plaintiff's capacity to undertake two-handed delivery work as a driver. 154Whilst the Insurer considered that the plaintiff was suitable for the occupation of Delivery Driver (Local Restaurant, Medical Pathology), it is noted that the Trustee took a different view. In its decision dated 9 March 2011 it stated that "we" did not consider there was sufficient evidence to suggest that he was capable of engaging in such occupation as a delivery driver, but that he "may" be suited to a position of light packer: Assessor's report 9 March 2011, Exhibit A1, at p 439. 155The Trustee's letter rejecting the claim concluded that, after taking into account all of the medical evidence, "we agree with [the Insurer's] decision to decline the claim": at p 439. 156It was noted in the submissions for the plaintiff that even if forklift or delivery driver positions could, as the Insurer suggested, be said to fall within the TPD definition (which the plaintiff disputed), no further inquiry in that respect was made either by the Insurer or by the Trustee: T 12:48-50. It was submitted: "... That is, that in the real world, as a matter of fact, he couldn't get a job doing that in any event." (T 12:49-50) 157This submission requires consideration of the evidence that bore directly upon the likelihood, firstly, of the plaintiff's capacity to work as a forklift driver or a delivery driver (both of which in any event it was contended were not occupations for which the plaintiff was reasonably fitted by his education, training or experience) and, secondly, at light packing work involving the use of both upper limbs in what was referred to in the plaintiff's submissions as the "real world". 158The specialist medical reports available to the Trustee and the Insurer prior to the first decision made on or about 31 January 2011 addressed the nature and causes of the plaintiff's upper left limb as well as his shoulder and cervical symptoms. 159The examining specialists assessed the loss of function in the left limb, and established that the plaintiff was permanently impaired and incapacitated from his pre-injury work as a formwork carpenter. 160On the issue of whether the plaintiff had a residual work capacity or may have a residual capacity following re-training, the medical reports of Dr Dixon (2 September 2008 and 22 October 2010), Dr Lawson (4 November 2008 and 23 February 2009), Dr Bodel (9 September 2009), Dr Faithfull (11 September 2009) and Dr Tomasevic (25 May 2009) indicated that any ability to do some form of light or sedentary work depended upon the plaintiff's ability to perform such work even though the plaintiff suffered from continuous upper limb and neck symptoms, exacerbated by certain forms of activity if carried out over a number of hours per day or per week. 161Drs Tomasevic and Bodel in particular, emphasised that any assessment had to take account of the fact that the plaintiff was limited to light forms of work, and his need to undergo retraining for some form of sedentary work.

[21]

(g) Medical Assessment of the Level of Impairment 162In relation to the nature of the impairment from which the plaintiff suffered as at the date of the Insurer's decision, there existed a considerable body of medical evidence to establish that, apart from ongoing pain with exacerbation of pain in the left shoulder and neck areas, he had lost significant grip strength in his left hand. On the latter issue, Dr Faithfull in his report of 11 September 2009 (Exhibit A1 at pp 168-174) noted his "grip strength was reduced in the left hand compared to the right": at p 171. This was consistent with Dr Lawson's assessment. 163Dr Faithfull, in providing his report, proceeded upon the basis that the plaintiff had had training as a storeman and packer. That was factually incorrect and to an extent undermines his conclusion that he would be able to do such work provided it was below shoulder level and did not require him to lift more than 10 kgs with his left arm. Taking all such matters into account, the submission for the plaintiff was that the Insurer could not rely upon Dr Faithfull's finding or his conclusion that the plaintiff did not meet the requirements of TPD. Additionally, in the "real world", it was submitted, for a person such as the plaintiff, such a limited or restricted job does not exist. 164In fairness to Dr Faithfull, in addressing questions directed to the plaintiff's fitness for work, he put the latter's "theoretical" capability for work at twenty hours per week on lighter work duties but made clear that in reality his earning capacity had been "severely compromised" by the effects of injury. 165Dr Faithfull proceeded to give the following answers to specific questions posed for his consideration: "4. What is the patient's fitness for work? It is my opinion that Mr Banovic would be fit for work that did not require the most strenuous use of his left hand or arm but he would not be able to work above shoulder level with his left arm. 5. Does the patient have a loss of earning capacity either in the past or in the future or a loss of capacity to perform any activity, which were performed prior to the accident; please consider our client's job description and nature of duties performed. Specific examples of any activity which the patient has difficulty performing or cannot perform should be provided. It is my opinion that Mr Banovic would have great difficulties in returning to work as a labourer. His training appears to have been a storeman and packer. He would be able to do that work so long as it was the below shoulder level and did not require him to lift more than 10kg with his left arm." 166I have earlier referred to the submission for the plaintiff to the effect that a capacity for light work as a theoretical possibility does not satisfy the TPD definition. 167The results of a number of radiological investigations were listed in Dr Bodel's report of 9 September 2009. These established the presence of underlying disease processes and other abnormalities relevant to his shoulder and neck symptoms as follows: Date Investigation Comments 16.12.2008 CT scan of the cervical spine There is degenerative disc disease at C5/6 and C6/7 16.12.2008 Left shoulder MRI scan The rotator cuff is intact but there is evidence of bursitis 25.5.2009 Ultrasound of the left shoulder There is evidence of supraspinatus tendonitis but rotator cuff appears intact

[24]

Failure to Apply the Total and Permanent Disablement 174The definition provisions in clause 1.3.1, of the Insurance Policy as earlier discussed, contain a number of elements. For the purpose of this case the critical element is whether the plaintiff's disablement and impairment possessed the qualities of being "total" and "permanent". The Trustee and Insurer were required to determine whether the plaintiff, being an insured person unable through disablement to follow his/her usual occupation, would be "unlikely" to be able to engage in any Regular Remuneration work, being such work for which he was reasonably fitted by education, training or experience. 175Whether the plaintiff was "unlikely" to engage in such work in the future involved an evaluation of his disablement - both its nature and extent and related symptoms and an accurate consideration of past facts associated with his previous education, training or experience. 176Such an evaluation in accordance with the caselaw principles referred to above had to be a realistic evaluation based upon the information concerning the matters referred to in the preceding paragraph and with them in mind the likely availability of any relevant jobs on the employment market as well as the physical demands a particular occupation would be likely to place upon a person with the plaintiff's disabilities. 177The Insurer's conclusion expressed in its letter of 31 January 2011 was that "medical information on file supports [the conclusion] that claimant is fit for suitable duties": (Exhibit A1 at p 421). 178That conclusion, however, failed to reveal an application of the correct test. The expression, "fit for suitable duties", exposes the fact that the conclusion was arrived at without regard to what work the plaintiff was "reasonably fitted" for by reference to his education, training or experience. A number of paragraphs later the insurer wrote: "Suitable alternative occupations, for which the member is reasonably fitted by education, training or experience, and in keeping with his medical restriction include but are not limited to:

Light Packer
Delivery Driving (ie Local Restaurant, Medical Pathology)
Forklift Driver These occupations are non-skilled and any training done is on the job as part of the process. Therefore based on all available evidence, the member does not meet the policy definition for Total and Permanent Disablement." (Exhibit A1 at p 421) 179The statements in these paragraphs by the Insurer does not, as argued on its behalf, assist it in these proceedings. The plaintiff had no prior experience or training as a "light packer", delivery driver or Forklift driver. Further, no medical practitioner was asked to consider the requirements of such occupations nor address his fitness for them put forward by the Insurer as "suitable". There was no evidence that established that the plaintiff could undertake work of the kind suggested using both his left and right upper limbs or undertake work that required lifting, manipulating and packing of objects on a repetitive basis with his left upper limb (in addition to his right) over a specified number of hours per day. The same position pertains to delivery driving work and forklift driving work. The reasons for decision expressed by the Insurer and Trustee also omit reference to the fact that the plaintiff suffered from ongoing left shoulder and neck pain that fluctuated with exacerbations. His symptoms in those areas were not disputed. There was no evidence that the plaintiff had any training, education or experience with packing work, delivery driving work or forklift driving prior to his accident. Moreover, there is no reference to that fact in the reasons of the Trustee or the Insurer in seeking to apply the TPD definition in clause 1.3.1 of the Insurance Policy. 180The reasons for decision given by the Insurer and Trustee do not, in my opinion, contain a balanced, objective or comprehensive review of the medical opinions. Thus, the Insurer's letter sets out six dot-points in relation to Dr Bodel's report dated 9 September 2009. Dr Bodel is an orthopaedic surgeon. The summary of Dr Bodel's report in the insurer's letter stated: "He should however theoretically be capable of lighter duty work at waist level up to 20hrs per week as long as he avoids strenuous and repetitive tasks with the left upper limb." (Exhibit A1 at p 416) 181The Insurer, however, failed to include Dr Bodel's opinion, directly relevant to the issue of the plaintiff's TPD, as contained in that same report of 9 September 2009: "4. What is the patient's fitness for work?" This gentleman is not fit for unrestricted work as a formwork carpenter. He will struggle to return to any form of work that requires strenuous and repetitive tasks with the left upper limb. He will need to be retrained in alternative duties. This will be difficult as he has very few transferable skills and he has a poor command of the English language." (Exhibit A1 at p 181) 182The failure by the Insurer to refer to Dr Bodel's opinion in its full terms (see below) is a matter that reaches beyond a failure to provide an objective and balanced assessment of relevant material. The above extract from Dr Bodel's report deals with a relevant and a material consideration - the plaintiff's present and future capacity for work including the practical difficulties that, in Dr Bodel's assessment, the plaintiff will face in what he refers to as "his struggle to return to any form of work" by reasons of the physical limitations affecting the left upper limb. The Insurer did not include Dr Bodel's comments in that respect in its letter conveying its decision. Dr Bodel further expressed his opinion in the following terms: "This gentleman's earning capacity has been severely compromised by the effects of this injury. He is now 48 years of age and his prospects of returning to paid employment are very slim He should however theoretically be capable of lighter duty work at waist level up to 20 hours a week as long as he avoids strenuous and repetitive tasks with the left upper limb." (Exhibit A1 at p 181) 183That opinion was well within the expertise of a specialist orthopaedic surgeon experienced in the assessment of an injured person's work capacity. The outlook for the plaintiff returning to paid employment, at least for any number of hours per week, is in Dr Bodel's opinion very limited. The failure of the Insurer to include reference to that opinion in its full terms (as extracted in para [182]) in its summary of medical reports, is significant if not alarming in a matter where a fair and objective appraisal is essential. This particular criticism is not directed to the Trustee's summary of medical reports in its assessment report dated 9 March 2011 which did set out in Exhibit A1 at p 436 and p 438 Dr Bodel's above comments, although there is no further reference to the significance of those comments in the Trustee's final expression of opinion agreeing with the Insurer's decision to decline the claim (at p 439). On one view, the Trustee impliedly put Dr Bodel's above quoted comments to one side in reaching its ultimate conclusion. Why is not explained. On another view, even if the Trustee (and the Insurer) had regard to Dr Bodel's comments, there would be a need to explain why they had no significance to the ultimate assessment made. 184The letters of the Insurer and Trustee setting out the basis for declining the claim additionally failed to address the TPD definition requirement of the likelihood ("unlikely ever to be able to engage ..." etc) of the plaintiff being able to engage in Regular Remuneration work by reference to work specifically for which he is reasonably fitted by his education, training or experience. 185The Insurer, at Exhibit A1 at pp 419-420, recorded the plaintiff's education, training and experience in the following terms:
- Storeperson - managing documents, 1982-1993
- Handyman (Self Employed), 1993-2001
- Process worker, 2002-2003
- Labourer, 2003-2004
- Labourer, 2004-2006
- Storeperson trade school certificate
- Forklift licence 186As to "storeperson", the Insurer omitted to refer to the fact that the plaintiff's work "managing documents" was work he performed many years before in his country of origin, Croatia, using his native language. The Insurer's letter declining the claim does not attempt to explain how the plaintiff with his limited English language skills had the capacity to engage in store work, and what matters would have to be addressed to determine his capacity. 187As to "process worker", the Insurer's above letter does not refer to difficulties the plaintiff, on the medical evidence, would have in undertaking repetitive process work with the injured left upper limb and his symptomatic shoulder/neck condition. 188In relation to the conclusion expressed in tentative terms "may be suited" for light packing work, I note: (i) No detail was provided as to the nature of such process work. (ii) No consideration was given to the likely conditions of work - in particular, how a person with the plaintiff's upper limb disability could successfully perform such work or the period of time over which it could be performed. (iii) No consideration was given to whether such work satisfied the provisions of clause 1.3.1 of the Insurance Policy. 189As to the reference to the plaintiff's forklift licence, there is no reference by the Insurer in its decision to the fact that the forklift licence was obtained some two years following the plaintiff's accident and that he had had no experience before or after the accident in driving a forklift or having undertaken forklift driver duties. The plaintiff obtained the forklift licence after attending a five-day course. At the time of sustaining his injury he was not reasonably fitted for driving a forklift. 190Dr Horace Ting conducted a vocational assessment and functional capacity evaluation of the plaintiff in 2009 and 2012. He was cross-examined by Mr Walsh, counsel for the defendant, on 21 February 2014. 191It was suggested during the course of that cross-examination that there was no evidence of nerve encroachment in the neck in the medical reports: T 71:25-30. However, I have referred elsewhere to the scans undertaken to establish a pathological basis in the cervical spine for the plaintiff's neck complaints. 192Dr Ting was asked: "Q. If previous vocational assessment reports had identified other vocational options in 2007 and 2008 and 2010, those would have been matters that would have been relevant to your consider [sic]? A. I would consider that. Q. You did not consider the following vocational options: Firstly, forklift operator, packer, commercial cleaner, courier driving, delivery driving, did you? A. We did forklift driver, I mentioned earlier. It was not suitable. Q. What were the reasons that you excluded forklift driver? A. ... WITNESS A. He wasn't able to turn his neck repetitively. He wasn't able to maintain concentration when he operated forklift." (T 73:44-T 74:9, 21 February 2014) 193I was impressed with Dr Ting as a straightforward witness. I note that his evidence, in several respects, is in conformity with the medical evidence as to the plaintiff's medical history, the established restrictions and disability associated with his left upper limb, and the reported pain symptoms in the neck region referred to in the various medical reports. 194The reasons for the decisions of the Trustee and the Insurer do not, upon close review, in my assessment, reflect a proper consideration as to whether the plaintiff was able to undertake suggested "suitable work" and they failed to properly apply or give effect to the conditions specified in the definition of TPD. 195In accordance with caselaw authority, the Insurer and Trustee were constrained by the obligations upon each to have particular regard to the plaintiff's education, training and experience including the fact as to the absence of trade or other qualifications held by him, his pre-injury employment history involving heavy manual work, his age and the nature of his disabilities and impairment. The obligations in this respect upon the Insurer and Trustee were underpinned by the necessity by each of them to undertake a practical and realistic assessment of the likelihood or otherwise of the plaintiff returning to Regular Remuneration work having regard to him as an individual - his age, his training, education and experience (or lack thereof) - not an assessment as to any theoretical possibility of him doing so. 196Further, the availability of Regular Remuneration work for physically impaired workers of his age etc on the open employment market was an additional matter to be taken into account in a realistic and practical assessment. 197In this latter respect the observations made in Savelberg v United Super Pty Ltd [2011] NSWSC 1482 are apposite. 198In Savelberg v United Super Pty Ltd, supra, this Court (Nicholas J) referred to the decision in Szuster v Hest Aust Ltd [2000] SADC 2 where consideration was given to the effect of a definition of TPD which was in substantially similar terms to the definition in Savelberg and in the present case. Nicholas J at [16] referred to what should have been taken into account by an insurer considering its opinion. They included:

[25]

First Stage of the Proceedings 205The central contention in this case was that no reasonable trustee could have come to the first, second and third decision to which the Trustee came. 206Similarly, it was contended that the Insurer was under a duty to act reasonably in considering the plaintiff's TPD claim and in coming to its conclusion, but that it did not act reasonably in that respect. The contention was, in effect, that the Insurer acted unreasonably on the material before it and that its decisions are, on that basis, open to attack. 207The question whether there was a reasonable basis for the Insurer's decision turns on the evidence taken as a whole that was originally supplied to it and as later supplemented. 208The provisions that define "total and permanent disablement" relate to disability to obtain future employment. A person is able to engage in "regular remuneration work" under the provisions of the Trust Deed and Insurance Policy if he or she is able to undertake work occurring at fixed times or uniform intervals, including part-time work, but excluding casual work or other work of an intermittent nature: Hannover Life Re of Australasia Ltd v Dargan, supra, at [46]-[47]; Lazarevic v United Super Pty Ltd, supra, at [103]. 209The Court is required to take a realistic and common-sense approach. There must be a real prospect, and not merely a theoretical possibility, that the work will be available. It should not be work in some special light duties job created for the injured worker: Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 per McDougall J at [109]. 210It has been necessary in the determination of the above issues to ensure close attention to the consideration or lack of consideration and interpretation given by the Trustee and the Insurer to the material made available to each of them. 211I have reached the conclusion that no trustee or insurer acting reasonably could have decided, at the relevant time, that the plaintiff was not totally and permanently disabled within the meaning of the definition of TPD. 212Upon examination, the medical evidence was strongly to the effect that by reason of his disabilities (including associated restrictions and symptoms as identified in the evidence) the plaintiff was unable to engage in any regular remunerative work for which he was reasonably fitted by education, training or experience and that it was unlikely that he ever would so engage. 213In a case such as the present, the medical evidence is considered in a context of other evidence relevant to an assessment of a claimant as an individual, in particular, of a person of a given age, of a certain education, training and experience, whose pre-injury occupation involved heavy physical work, a migrant to this country with limited English language skills with physical impairment and disabilities. The medical specialists who have examined the plaintiff did not express an opinion that his symptoms, complaints and restrictions were not genuine. 214In this case, the liability of the Insurer under the Insurance Policy depended upon the formation by it of an opinion as a condition of its liability. 215As Hallen J in Lazarevic observed at [126], in those circumstances an insurer is bound by a duty of good faith and fair dealing to act reasonably and fairly in considering and determining the matter and, in particular, the insurer was bound to have due regard to the interests of the plaintiff in forming, or declining to form, the opinion upon which its liability depended. 216For reasons discussed above, I have concluded that each decision by the Insurer and Trustee was unreasonable and accordingly invalid.

[26]

Second Stage of the Proceedings 217As noted earlier, it is only if the Court makes a determination that the relevant decisions were vitiated that the Court will then proceed to consider independently whether the plaintiff meets the requirements of the TPD definition: McArthur v Mercantile Mutual Life Assurance Company Limited (2001) 11 ANZ InsCas 61-501 at [16] (per McPherson JA); Hannover Life Re of Australasia Ltd v Sayseng (2005) 13 ANZ InsCas 90-123 at [36]. 218As observed in the Defendants' Outline of Submissions dated 16 February 2014, the Court's consideration of the second stage of the proceedings is not restricted to the material before the Insurer and the Trustee: see in that respect McArthur v Mercantile Mutual Life Assurance Company Limited, supra, at [73]. 219In the Defendants' Supplementary Submissions dated 21 February 2014 evidence relevant to the second stage of the proceedings was addressed at [13]-[55] of the Supplementary Submissions. 220The defendants made submissions in support of the contention that the plaintiff had retained a capacity for work based on his education, training and experience. In this respect reliance was placed upon a CRS Vocational Assessment, the subject of Ms Berriman's report dated 9 July 2007, and additionally a CRS Functional Capacity Evaluation of Alicia Bartholomeusz, a Rehabilitation Consultant and Occupational Therapist, dated 4 September 2007. 221It is to be noted that both of these reports were made in the interval between the plaintiff's first carpal tunnel decompression operation on 8 March 2007 and the surgery performed on 2 October 2007 for the problem associated with the trigger dysfunction of the left index finger. Accordingly, the reports were made in the period in which the plaintiff, still subject to surgical intervention, was in a period of recovery. Accordingly, the reports are of limited, if any, assistance in determining whether, at the relevant date, the plaintiff had a retained capacity for other work based on his education, training and experience. Indeed, those reports must, in my assessment, be read subject to medical examinations, findings and opinions of medically qualified examiners, including in particular, medical specialists. 222Subject to those comments I note the following:

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(iii) Vocational and Functional Assessment by Ms Jurkowski and Dr Ting (27 November 2009) 228The plaintiff underwent a "Vocational and Functional Assessment" which was the subject of a detailed report dated by 27 November 2009 by Irinah Jurkowski, Rehabilitation Counsellor and Dr Horace Ting, Occupational Therapist/Vocational Assessor: Exhibit A2 at pp 532-554. The authors noted at p 533 that the plaintiff "... appeared at all times to be genuine when recalling the impacts of the injuries on his life". 229At pp 543-544 of the report it was stated: "Mr Banovic does not demonstrate a physical capacity to perform the full duties of his pre-injury duties as a Construction labourer. He demonstrates a physical capacity to perform suitable sedentary work2 for 4 hours per day, 5 days per week. He should consult his doctor regarding the side effects of some of the medications should he be required to perform work that require dynamic balance or multilimb coordination. He should avoid tasks that require: ● Sustained holding of head in one position ● Repetitive movements of the head ● Rapid changes of body posture ● Repetitive reaching to the above head level ● Repetitive left upper limb work ○ Explosive strength ○ Repetitive gripping ○ Repetitive movements of the wrist ○ Holding more than 3kg ● Carrying more than 5kg for short distances ● Prolonged sitting, standing or walking ● Agility ● Working in a confined space ● Responding to emergencies ● Repetitive bending, twisting or turning of the upper body ● jerking, jolting or jarring of the body. ... 2Sedentary work is generally defined as work that require exerting up to 4.5kgs (10lbs) of force occasionally or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are Sedentary if walking and standing are required only occasionally and all other Sedentary criteria are met." 230The authors of the above report addressed the "Barriers to Employment" at pp 552-3 of the report: "Though Mr Banovic is fit for sedentary work on reduced hours, he continues to suffer sequelae of the work incident and encounter significant barriers to finding and maintaining new employment. All barriers listed below are specific to Mr Banovic. These barriers are factors that have been shown to reduce successful employment. 1. Physical and functional restrictions a. Mr Banovic has severe physical limitations and can only perform sedentary work on reduced hours. This would reduce his competitiveness for non-skilled or semi-skilled jobs. 2. Psychological sequelae following the injury a. Mr Banovic suffers from anxiety and depression. He is easily frustrated and has low motivation in doing things. This would affect his performance at work or presentation during job interviews; hence his competitiveness for jobs in the open labour market would be reduced. 3. Poor health conditions a. Mr Banovic suffers from fatigue and exhaustion because of insomnia. b. Mr Banovic is less able to participate in physical and recreational activities. 4. Age a. Being 48 years of age is a barrier to return to work (39% of 45-54 year-old job seekers are unsuccessful) 5. Lack of career direction and goal following injury a. Mr Banovic is unsure what other occupations would be suitable for him as he can no longer perform the role of a Formwork labourer. 6. Low clerical and verbal and numerical reasoning skills a. Mr Banovic has undergone vocational testing and his results indicate low levels of clerical and moderate numerical skills. This would reduce his chances in seeking out new employment. As a consequence of the subject work incident and its physical and emotional sequelae, Mr Banovic's chances in gaining and maintaining new employment in the open job market have been reduced due to significant employment barriers identified above. For calculating his chance of employment and potential earning, a reduction of 10 percent is allowed for each of the six barriers. As a result of the subject work incident, he has fewer abilities to secure a new employment, and his chances of gaining a new employment have been reduced by 47%." 231At p 554 of the report the authors stated: "Considering his transferable skills, vocational interest and aptitudes and functional capabilities, positions that are suitable to Mr Banovic would be suited for a part-time role as Products Examiner. However, Mr Banovic continues to encounter six employment barriers and his chances of securing a part-time position as a Products examiner or similar positions would be reduced by 47%. He demonstrates a real earning potential of $181.15 gross per week (average hourly rate $17.09; 20 hours per week; 53% chance in gaining an employment)." 232That Vocational and Functional Assessment Report was consistent with an earlier vocational assessment undertaken in 2007 by Ms Berriman on behalf of CRS Australia, an agency of the Commonwealth government: see report dated 17 July 2007: Exhibit A2 at pp 625-635. 233This latter report was relied upon by the plaintiff as indicating the matters required to be considered by the Trustee and Insurer, which it was contended had not taken into account by either of them. 234In the discussion as to possible "suitable employment options", in particular, positions of Delivery Driver, Light Process Worker, Light Hand Packer and Commercial Cleaner, whilst each position was considered in the assessment to be suitable, for reasons stated in the report (at p 629), each of the suggested employment options was subject to the need for what was terms "Functional Capacity Evaluation" to ensure that the suggested positions were in fact suitable. 235In the Functional Capacity Evaluation Report dated 4 September 2007 prepared by Ms Bartholomeusz, each of the above positions was said to be suitable subject to: "i Stated restrictions as identified in the assessment and the ability for a workplace "... where he can frequently alter his working posture with his left hand and where he would not be required to do any repetitive work requiring use of his left hand": (at 641) ii Referral for "... a full occupational rehabilitation program to assist [the plaintiff] to obtain suitable employment considering his physical restrictions, vocational options and his specific injury management needs." (at 645)

[32]

(v) Earning Capacity Assessment (9 November 2010) 239The plaintiff underwent a functional and vocational assessment on 9 November 2010 carried out by Dr Keller and Ms Belinda Messer. 240Reference was made in the assessment report to the plaintiff's lower back being held stiffly but the relevance of this observation is not identified or discussed. The callus on the left thumb, though noted as an observation, does not establish that the plaintiff had been able to use his left upper limb in a manner that was inconsistent with the assessments of the treating and other medical specialists. I note that the plaintiff himself had disclosed to medical examiners that he had attempted work in his garden as he was "bored". Reference was made to the plaintiff's ability to sit comfortably for sixty minutes although he said it became difficult for him after thirty minutes. The authors suggest some inconsistency in this respect although the plaintiff was not cross-examined to suggest that he was wilfully feigning disability. 241The authors observed that the plaintiff reported that his driving was limited by neck pain to thirty minutes. The plaintiff's account in that respect is not disputed. It is consistent with complaints recorded by other examining specialists in their assessments. The defendants did not dispute that the plaintiff has had a history of painful neck symptoms in addition to his upper limb disability. A limitation arising from neck pain on driving would suggest that, contrary to some assessments, the plaintiff was, and is not, in fact suitable for an occupation involving either forklift driving or courier driving. The abovementioned assessment, however, did not seek to engage on that issue. The failure to do so impacts adversely on the weight that can be attached to the opinions expressed in that respect. 242The authors identified what are referred to as transferable skills. However, there is no explanation as to how a person with significant upper limb disability can effectively, in a practical sense, utilise such "transferable skills" despite the disability in other suggested areas of work. Whilst the authors refers to other possible alternative forms of work, such as a packer, factory process worker and product assembler, there is a failure to identify the basis upon which it is likely that the plaintiff, with his disabilities, could obtain, in the open employment market, work in those alternative occupations. Further, no consideration is referred to as to whether the plaintiff has a retained capacity for such job position based upon his education, training and experience. 243The earning capacity assessment report of Dr Keller and Ms Messer dated 9 November 2010 commissioned by the workers' compensation insurer (GIO) warrants closer examination. 244The Executive Summary expresses disagreement with a "Current Medical Certificate" and states that the plaintiff was "unfit for pre-injury work" but also states: "fit for full hours". However, significant restrictions are then specified, namely:

No lifting over 5kgs;
Regular postural change; and
No working over chest height. 245As to the above, the Executive Summary states: "... These restrictions are due to his degenerative cervical spondylosis and his left shoulder tendonitis. The left wrist injury is not a limiting factor." 246The "left wrist injury", of course, was the compensable work injury. From the perspective of the claim for TPD all of the plaintiff's medical conditions as at the relevant date are to be taken into account, in particular, the left shoulder and cervical conditions reported in the reports of other examining specialists: See reports of Dr Faithfull, Exhibit A1 at pp 171 and 173 and Dr Bodel at pp 178-179. 247Additionally, the statement that the left wrist injury was not a limiting factor is not consistent with the opinions of other specialists (for example, Dr Lawson, Exhibit A1 at p 357, Dr Bodel at p 171 and at p 172 (as to symptoms) and Dr Dixon at p 353) in their findings as to posttraumatic weakness of grip strength. See also Dr Pukanic's report 7 July 2011 as to continuing complaints of pain in the left hand, wrist forearm, left shoulder and neck and exacerbations of left hand and wrist: Exhibit A1 at p 462. 248Dr Ting's very lengthy and detailed Vocational and Functional Assessment Report (including on earning capacity assessment) dated 27 March 2012 (Exhibit A2 at pp 569-605) for "Injury Access" contained a consistent history of symptoms (p 576) and noted signs consistent with loss of strength and function in the left upper limb. He noted: "There were further muscle wastage of the left upper limb and weakening of his grip strength ..." 249Dr Ting placed a limitation on sedentary work for four hours per day, five days per week (p 581). He there listed a series of limitations or restrictions. One such restriction was avoidance of tasks that require "Repetitive movements of the head". Such a restriction would be one that would appear inconsistent with the Insurer's suggestion that he could perform work as a forklift driver. See also restrictions on tasks that require "Repetitive bending, twisting or turning of the upper body" and "jerking, jolting or jarring of the body" (p 581). 250Dr Ting noted at 591: "Following the second operation Mr Banovic was assisted by Konekt, a Rehabilitation provider. Mr Banovic obtained a forklift licence in April 2008. However, he considered the forklift operator job not suitable because of the demand on high concentration ..." (my emphasis) 251The job description of "Forklift driver" at Exhibit A2 p 704 states that "use of both hands" and "twisting" is involved in that activity, both of which are contra-indicated in the plaintiff's case. 252The assessment made by Dr Ting does not support the range of occupations that the Insurer earlier stated were suitable for the plaintiff (as to which see earlier discussion above). Dr Ting observed at p 601: "The vocational assessment results showed that Mr Banovic is not suited for any clerical work or occupations that require reading, listening or writing in the open labour market due to his limited transferable skills and low English competence. As a result, Mr Banovic would be restricted to low skilled sedentary physical work, such as Products Examiner / Quality Control, and would not be competitive for future employment opportunities in the open labour market." 253Dr Ting set out at pp 603-604 the "Barriers to Employment", which included: "8. Low clerical and verbal and numerical reasoning skills a. Mr Banovic has undergone vocational testings and his results indicate a low level of checking skill. This would reduce his chances in seeking out a Products Examiner role. 9. Age a. Being 51 years of age is a barrier to return to work (39% of 45-54 year old job seekers are unsuccessful)." 254Dr Ting concluded at p 604: "Considering his medical condition, rehabilitation progress to date, and significant return to work barriers, it is now my view that on the balance of probabilities, Mr Banovic is unable to follow his usual occupation and is not expected to ever return to any regular gainful employment in the open labour market." 255A little later at p 604, Dr Ting added: "Mr Banovic does not demonstrate a marketable work capacity to compete for work in the open labour market."

[33]

Dr Ting 256The defendants referred in their Supplementary Submissions to the reports written by Dr Ting dated 27 November 2009, 27 November 2012 and 27 December 2012. Dr Ting is a Rehabilitation Consultant and Occupational Therapist. 257The Supplementary Submissions refer to various observations made by Dr Ting at [38]-[42]. 258Reference was made, in particular, to Dr Ting's observations in the vocational assessment section of his report that only one occupation may be suitable for the plaintiff, that of Products Examiner/Quality Controller. The submission was that Dr Ting was alone amongst the vocational assessors in considering that occupation and in restricting himself to only the one vocational option: at [41]. 259Dr Ting was required by the defendants for cross-examination and he gave evidence on 21 February 2014. 260In his oral evidence, Dr Ting said that he undertook his functional assessment to determine the physical restrictions that apply to the plaintiff: T 67:30-35. 261He said that the plaintiff had attempted to return to some form of work: "A. He did try to work - return and work as a storeman, driving forklift, with difficulties." (T 68:2-3) 262He stated that one of the assumptions that he had made was that the plaintiff could only return to sedentary work: T 69:30-35. He was asked: "Q. So what did you intend by the words 'sedentary duties only' in your 2012 report? A. Sedentary refers - there's an explanation in the report, 'sedentary' refers to work that required handling up to 5kgs. Sit or stand but not for prolonged periods. And in my report I recommended that he would be able to do light work as well, but limited hours." (T 70:30-35) 263He was then asked about the plaintiff's ability to undertake forklift operations: "Q. At Court Book 591, that's your 2009 report, you state that Mr Banovic told you that he considered a job as a forklift operator was not suitable because of a demand of high concentration. Do you recall that being one of the barriers reported? A. I do. Q. Was that one of the barriers to returning to work as a forklift operator that you took into account for the purposes of your vocational assessment? A. I did. Q. And what were the other barriers, if any, that you took into account with regard to forklift operator? A. Operating a forklift required repetitive neck movement and he has neck difficulties and pain. Q. I see. Did you have regard to the medical evidence as to the cause of the neck pain or the likelihood that it would continue in the future? A. I did. Q. What medical evidence was that? A. I rely on the treating doctor's recommendation." (T 71:1-22) 264Dr Dixon, Consultant Orthopaedic Surgeon, in his report of 23 January 2013, obtained a history of persisting pain and stiffness in the left wrist, pain and stiffness in the left shoulder, and stiffness in the neck: Exhibit A2 at p 607. 265The assessment reports of Dr Ting, Dr Keller and Ms Messer, and the report of Dr Dixon of 23 January 2013, are consistent with and support the earlier medical assessments that the combination of the plaintiff's physical disabilities, at the material date and thereafter, left him with very little retained capacity. 266The evidence indicates that he has, with the assistance of his daughter, applied for a number of work positions with suitable modifications to accommodate his impairment without success. That is but one matter, along with the medical evidence and the evidence bearing upon the likely availability of work for a person in the plaintiff's position, to be taken into account.

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PART F 267I am satisfied: (i) That no reasonable trustee or insurer, applying the correct test to the available material, could have reached the conclusions that the Trustee and Insurer in this case reached. (ii) The Trustee and Insurer had a number of opportunities to consider and reconsider the plaintiff's claim. Each has maintained their original decisions. (iii) This is a case in which the Court should exercise the discretion that was vested in the Trustee. (iv) I am satisfied that the decisions of the Insurer are invalid. The Court should exercise its discretion to proceed to determine the issues raised in these proceedings. (v) I am satisfied on the evidence constituting the Joint Court Books (Exhibits A1 and A2) and the oral evidence that the plaintiff has satisfied the definition of TPD within the meaning of the Insurance Policy and that he is entitled to be paid the relevant amount, namely $100,000. Accordingly there should be an order for interest. 268In respect of pre-judgment interest, I note that under s 100 of the Civil Procedure Act 2005 the Court has power to include interest in the amount for which judgment is given, the interest to be calculated at such rate as the Court thinks fit on the whole or any part of the money, and for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect. 269I propose to make an order for pre-judgment interest on the whole of the judgment sum ($100,000) from 9 March 2011, being the date on which the Trustee first agreed with the decision of the Insurer and declined the plaintiff's claim, to the date of judgment. Such an award of interest would be premised upon the basis that the plaintiff's cause of action arose on 9 March 20112. Interest is to be calculated in accordance with the Uniform Civil Procedure Rules, Civil Procedure Act (s 100) and Supreme Court Practice Note SC Gen 16. 270On that basis, a calculation of interest at the prescribed rates on the total sum referred to above, namely, $100,000, would produce the following outcome: Date from Date to Base Days in Period Rate per annum Rate per day Interest accrued 9/03/2011 30/06/2011 $100,000.00 114 8.75% $23.97 $2,732.88 1/07/2011 31/12/2011 $100,000.00 184 8.75% $23.97 $4,410.96 1/01/2012 30/06/2012 $100,000.00 182 8.25% $22.60 $4,113.70 1/07/2012 31/12/2012 $100,000.00 184 7.50% $20.55 $3,780.82 1/01/2013 30/06/2013 $100,000.00 181 7.00% $19.18 $3,471.23 1/07/2013 31/12/2013 $100,000.00 184 6.75% $18.49 $3,402.74 1/01/2014 30/06/2014 $100,000.00 181 6.50% $17.81 $3,223.29 1/07/2014 27/10/2014 $100,000.00 119 6.50% $17.81 $2,119.18

If such work was available, whether it was likely the plaintiff could access it. 199In summary, the assessment by the Insurer and Trustee had to take into account: (a) The fact that the plaintiff had no prior training, education or experience in the occupations suggested by the Insurer as "suitable" - packing work, work as a delivery driver, or forklift driver. Medical assessment, in any event, would be required to evaluate such suggested jobs along with the need for any employer to make special adjustments to accommodate the plaintiff (eg, periodic work breaks, limitations on weight and height of lifting, repetitive actions etc). (b) The presence or availability of jobs in the employment market suggested by the Insurer and Trustee as "suitable". The reasons or bases for the assessments made by the Insurer and Trustee do not address as a relevant consideration the availability of such suggested jobs or the difficulties that are likely to confront an injured worker of the plaintiff's age in the employment market. 200The Trustee's assessment report referred to the plaintiff having looked for forklift and delivery driver work positions and states: "... however [he] was not successful in obtaining the position due to his injuries and restrictions. We note that his forklift licence was obtained in 2008 which required retraining and was not part of his qualifications prior to his injury": (Exhibit A1 at p 439) 201The first sentence in this extract in itself represents a recognition of the practical difficulties likely to have faced the plaintiff due to his impairment. However, the Trustee went on to state that: "... however given that Mr Banovic has worked as a process worker he may be suited to such a position as a light packer". 202The reference to "may be suited" of course addresses possibilities not likelihood. In particular, it does not address the issue of what is likely or "unlikely" within clause 1.3.1 (TPD definition). A significant deficiency in the analyses undertaken by the Trustee and the Insurer is that the limitations upon the plaintiff's retained capacity by reference to his previous education, training and experience was not specifically addressed or identified. Even if these matters were considered, there is lacking an analysis as to how they bear upon the issue of TPD. 203Following consideration of such matters the Insurer should then form an opinion, fairly, reasonably and in good faith, as to whether the plaintiff was likely to ever "engage in [or work for reward in any occupation or work] for which [he/she] is reasonably fitted by education, training or experience". 204The Insurer and Trustee were required to address the second of the matters referred to in Savelberg. To do so, each would need to have information on the availability of the work positions each considered to be "suitable" - or more correctly - Regular Remunerative Work for which the plaintiff, at his age and with his impairment was reasonably fitted by education, training or experience.