Byrnes-Reeves v QSuper [2025] QSC 285

• [1] On 6 December 2023, Mr Riley Byrnes-Reeves, the plaintiff, filed a claim in the Supreme Court of Queensland, claiming:

(a) $200,000;[1]

(b) $500,000 for interest; and

(c) $100,000 for costs of issuing the claim and this statement of claim.

• [2] The first defendant was the trustee of the fund, 'QSuper', until 28 February 2022. The second defendant is the current trustee of the fund, and the third defendant is the insurer.
• [3] On 13 July 2017, the plaintiff commenced employment at Riviera Boats[2] as a labourer. The plaintiff's employment at Riviera is the crux of his TPD claim, as this is where the plaintiff claims that he sustained injuries that prevented him from future employment.
• [4] The plaintiff's case is that he is entitled to his claim because he has a total and permanent disability due to mental health and spinal issues.
• [5] Although the plaintiff is not a party to the insurance contract, the third defendant accepts that, if a benefit is payable, then the plaintiff can sue for it directly.[3]
• [6] The defendants state that the claim should be dismissed as:

(a) on the material before the third defendant, its opinion was valid; and

(b) even if the third defendant's opinion was not valid, then the evidence before the Court does not support the plaintiff being entitled to his TPD benefit.

• [7] As for the first and second defendants, the defendants submit that no benefit is payable to the plaintiff as a member unless liability under the insurance policy is established and a benefit is paid by the insurer to the trustee. Since no such benefit has been paid, there is no amount payable by the first or second defendants.

• [8] This trial was protracted. The hearing commenced on 2 June 2025, with evidence given by the self-represented plaintiff and his mother. The plaintiff sought to rely on a number of medical reports but had not subpoenaed any doctors to give evidence on the contents of their reports.
• [9] On 3 June 2025, the second day of trial, the matter was adjourned to allow the plaintiff to subpoena doctors from whom he wished to adduce evidence in support of his case.
• [10] The hearing recommenced on 5 August 2025 and the plaintiff called Dr Mahapatra - a psychiatrist. The defendants called Dr Siddle, a psychiatrist, and Dr Goode, an occupational physician.
• [11] The bulk of the exhibits are medical records, mostly tendered by consent of the parties.

• [12] The plaintiff became a member of the QSuper fund on 26 October 2017. Upon becoming a member of the fund, the plaintiff's insurance coverage commenced.
• [13] The plaintiff's coverage ceased on 30 September 2019 (when the plaintiff submitted a hardship application to withdraw his account balance from the fund, which was accepted. On 1 October 2019, the defendant's cover ended.
• [14] Accordingly, in relation to the insurance policy, the relevant dates to consider are between 26 October 2017 and 1 October 2019.
• [15] The critical terms of the insurance policy are as follows:

(i) for an Insured Person who is Gainfully Employed - the date on which the Insured Person has ceased all work and has been certified in writing by a Medical Practitioner as unable to work due to the Injury or Illness for which the Insurance Benefit is being claimed; or

Individual Open Fund Member means a Member of the Fund who is not employed by a Queensland Government Employer who makes contributions to the Fund in respect of that Member or a Default Employer who makes contributions to the Fund in respect of that Member, and is not a Retained Member or a Spouse Member;

Injury means bodily injury resulting from an Accident;

Pre Existing Condition means an Illness or Injury the signs or symptoms of which existed prior to the date the cover or additional cover commenced;

Pre Existing Exclusion Period means a period in which an Insurance Benefit will not be payable if the Illness or Injury, of which the claim is subject, is related to a Pre Existing Condition;

Unless otherwise expressed in this policy, a Pre Existing Exclusion Period in relation to an Insured Person commences on the date the Insured Person became covered for the relevant type of cover;

SIS Regs means the Superannuation Industry (Supervision)s Regulations 1994 (Cth);

Total and Permanent Disablement means that, in the opinion of QInsure, the Insured Person:

(a) is under the care and following the advice of a Medical Practitioner; and meets one of the following definitions in Parts A, B or C as applicable; and

(b) meets the "Permanent Incapacity" definition contained in the SIS Regs, as amended from time to time.

Where at the Date of Disablement, the Insured Person was:

(a) Gainfully Employed, or unemployed for less than 6 months Part A applies;

Where at the Date of Disablement the Insured Person was Gainfully Employed or unemployed for less than 6 months, Total and Permanent Disablement means solely because of an Illness or Injury, the Insured Person has been absent from work and in the opinion of QInsure, after obtaining the advice of not fewer than two Medical Practitioners, which QInsure may require to be a specialist in the condition or related conditions, the Insured Person is unlikely ever to be able to work again in a job for which the Insured Person is reasonably qualified by education, training or experience that they have acquired or could reasonably be expected to be able to acquire in the future within a suitable rehabilitation/retraining program; In determining what could be acquired in the future, QInsure will consider if the Injury or Illness prevents the Insured Person from being able to undertake retraining or rehabilitation to acquire education, training or experience;

Total and Permanent Disablement Benefit means a benefit paid in accordance with clause 27.3;

11.2.1 An Insured Person's Default Cover will not be payable under this policy in the following circumstances:

(a) in QInsure's opinion, the Insured Person's death, Terminal Illness, Total and Permanent Disablement, Total and Temporary Disablement or Partial and Temporary Disablement is related to a Pre Existing Condition; and

(b) the Insured Person has not served the relevant Pre Existing Exclusion Period outlined in the respective schedule or clause of this policy."

• [16] Under r 1.03C of the Superannuation Industry (Supervision) Regulations 1994 (Cth) ("SIS Regulations") permanent incapacity is defined as:

"For subsection 10(1) of the Act, a member of a superannuation fund or an approved deposit fund is taken to be suffering permanent incapacity if a trustee of the fund is reasonably satisfied that the member's ill‑health (whether physical or mental) makes it unlikely that the member will engage in gainful employment for which the member is reasonably qualified by education, training or experience."

• [17] I note the plaintiff states that an earlier version applied. However, this is of no consequence as the earlier version defined the critical terms "Total and Permanent Disablement" and "Pre-Existing Condition" in the same way as the later version.

• [18] The definition of TPD in the policy hinges upon the opinion of the insurer, rather than on the underlying objective circumstances.
• [19] For the plaintiff to establish liability, he must satisfy both limbs of a two-step process:[4]

(a) the first step involves establishing some defect in the insurer's formation of opinion; and

(b) if the insurer's opinion is found to be defective, then the second step involves the Court going on to determine whether the plaintiff is entitled to the TPD benefit.

• [20] It is necessary to set out a detailed chronology to provide context to the plaintiff's diagnoses in relation to the TPD scheme and his employment with Riviera.
• [21] In 2009, the plaintiff was diagnosed with Raynaud's syndrome.
• [22] Sometime in 2015, while he was in Grade 10 of high school, the plaintiff attended five sessions with a psychologist at Headspace.
• [23] On 19 August 2016, the plaintiff saw a Dr Gundru, reporting low self-esteem. He told Dr Gundru that he'd been on the antidepressant Cymbalta in the previous six months and asked if he could be referred to a psychologist because of depression. The plaintiff saw Dr Gundru once more during August 2016 for the same reason.
• [24] On 15 September 2016, the plaintiff saw Dr Gundru and reported experiencing panic attacks, poor sleep, low self-esteem, depressed mood, anxiety, and irritability. Dr Gundru diagnosed the plaintiff as having "depression/anxiety".
• [25] Less than two weeks later, on 27 September 2016, the plaintiff saw Dr Gundru again and told her that his symptoms had worsened and that he felt "very teary".
• [26] On 29 March 2017 the plaintiff left Palm Beach Currumbin State High School.
• [27] Almost 4 months later, on 13 July 2017, the plaintiff commenced employment at Riviera as a labourer.
• [28] On 27 July 2017, the plaintiff's general practitioner at the time, Dr Wong, first recorded the plaintiff having symptoms of severe and debilitating anxiety, agoraphobia, attention deficit disorder, and Asperger's autistic spectrum disorder.
• [29] On 22 August 2017, the plaintiff then visited another doctor, Dr Abdul-Razack, on the basis that he was stressed for work. Dr Abdul-Razack certified that the plaintiff had a medical condition and would be unfit for work that day.
• [30] On 11 September 2017, the plaintiff left work early at Riviera.
• [31] On 13 September 2017, an administrative manager at Riviera emailed the plaintiff at 6.24am:

Obviously you left without Notice on Monday, and haven't heard from you.

• [32] The plaintiff responded at 12.17pm that day:

"Sorry for no notice Bryan I was feeling a little stressed out with the requirements of me on Monday, I was having a mental breakdown, I need a week of stress leave and can get a medical certificate if that's what's needed but at the end of the day it's your choice to keep me on or terminate me."

• [33] The administrative manager then replied at 1.49pm:

I don't see the connection with work, however contact us once you are better and we'll go from there."

• [34] That same day, the plaintiff ceased his employment at Riviera.
• [35] On 27 September 2017, the plaintiff went back to Dr Abdul-Razack, who recommended he speak to a psychologist. The plaintiff declined this suggestion.
• [36] Less than one month after the plaintiff ceased work at Riviera, he commenced new employment as a pizza delivery driver at Maries Pizza on 10 October 2017.
• [37] On 18 October 2017, the plaintiff visited Dr Abdul-Razack once again for depression, anxiety, panic attacks, and a referral to a psychologist. That day, Dr Abdul-Razack referred the plaintiff to psychologist Dr Devineni "for management of his long H/O anxiety, depression, panic attacks". The information about the plaintiff's "long history of anxiety, depression, and panic attacks" came from what the plaintiff told Dr Abdul-Razack by this time.
• [38] On 26 October 2017, the plaintiff's total and permanent disability cover commenced.
• [39] On 8 May 2018, almost 7 months after commencing work again, the plaintiff ceased working at Maries Pizza. Sometime after this in 2018, the plaintiff worked towards a diploma in mental health. He did coursework for about 12 months and a placement for about 1 month.
• [40] On 24 July 2018, another general practitioner, Dr Katz, wrote to a psychiatrist, Dr Jok Teng, regarding the referral of the plaintiff to him. He referred to the plaintiff as having:

"a long history of anxiety and depression extending back to his teens and multiple trials of antidepressants which have never had any benefit in altering his emotional and personal functioning".

"detailed mental state examination reveals that in all likelihood Riley has symptomatic disturbances on the congenital autistic spectrum lying in the AADD/ADHD range and associated particularly with diminished concentration, attention span and registration of information, especially from low stimulus sources such as text as well as easy distractability [sic]; difficulty staying to task, poor time management, habitual procrastination and busy, racing, scattered, poorly focused thoughts together with comorbid features of nervous hypersensitivity, social anxiety and obsessional thinking patterns such as overanalysing and overthinking situations and reading too much into the same leading, in turn, to anticipatory anxiety and periods of more generalised anxiety as well as chronic indecisiveness".

• [42] On 20 October 2018, Dr Patrick, a general practitioner, prepared a report and listed the plaintiff's "major physical, psychiatric and intellectual conditions" as "ADHD, dysphasia related to agoraphobia and agoraphobia related to anxiety". He also identified "other relevant conditions" of the plaintiff as Asthma, C6/C7 spinal injury and Asperger's syndrome ASD/ADHD.
• [43] On 18 February 2019, Gold Coast Radiology MRI Services reported on a scan of the plaintiff's cervical thoracic spine, stating, "At the C6/C7 level there is a small right parasagittal disc bulge." This means that the report showed that a spinal disc on the right side of the plaintiff's spine had slightly bulged outwards.
• [44] A few months later, Dr Bersin completed a document identifying the "main medical conditions which significantly impact on the [plaintiff's] capacity to work" as attention deficit disorder, agoraphobia, Asperger's syndrome, and autistic spectrum syndrome.
• [45] General practitioner Dr Islam then prepared a GP Mental Health treatment plan for the plaintiff, referring to "Ongoing symptoms consistent with ADHD; Also agoraphobia; Duration: since 07/2017".
• [46] The plaintiff's total and permanent disability cover ended on 1 October 2019.
• [47] On 20 February 2020, Dr Wong wrote to Dr Mahapatra with a consult note, stating that his reason for contact was "anxiety" and referred to the plaintiff's past history of ADD, ADHD, Agoraphobia, Anxiety, Depression, and Raynaud's Disease.
• [48] On 15 May 2020, the plaintiff signed a total and permanent disability claim form. Almost a month later, on 10 June 2020, the plaintiff's solicitors at the time sent the total and permanent disability claim to QSuper.
• [49] On 30 June 2020, Dr Wong signs a certificate that states, in his opinion, the plaintiff:

"is unlikely to be able to return to his usual occupation as a[5] because of injury / illness severe debilitating anxiety, agoraphobia, panic attacks on the background of ADHD from 8 May 2019."

• [50] On 3 July 2020, Dr Wong signed a Centrelink medical certificate for the plaintiff, referring to diagnoses of "severe debilitating anxiety, agoraphobia, attention deficit disorder". He also stated that "Riley is just not ready for the workforce until his mental conditions are stabilised. His care team are working intensely to achieve stabilisation". Dr Wong also certified that he is unfit for "work / study" from 3 July 2020 to 25 September 2020.
• [51] On 16 July 2020, Dr Wong wrote a letter and provided a corrected medical certificate to Centrelink to address the period stated on the medical certificate being "slightly over the 13-week maximum".
• [52] On 24 November 2020, QSuper wrote to Dr Mahapatra requesting a report. On 1 March 2021, Dr Mahapatra sent a report to QSuper, referring to the plaintiff's issues with anxiety starting in grade 7 and becoming much worse while he was working at Maries Pizza for nearly 8 months in 2018. He also referred to the plaintiff having developed severe social phobia in 2018 while working at Maries Pizza. He referred to the plaintiff's ADHD and ASD as having been in existence since childhood.
• [53] On 29 April 2021, Dr Wong sent a report to QSuper, referring to the plaintiff's "background of severe anxiety, panic disorder, agoraphobia, social phobia, autism spectrum disorder and ADHD" and also referred to the plaintiff having to quit his job as a pizza delivery driver "due to severe anxiety which resulted in uncontrollable vomiting before and during work". In terms of the plaintiff's employment prospects, Dr Wong said the following:

"In terms of employment prospects currently, he is likely to have severe anxiety and panic attacks despite being on his medications and therefore is unlikely to be suitable for regular employment."

• [54] He listed the plaintiff's medical history as including ASD, ADHD, agoraphobia, anxiety, depression, Raynaud's Disease.
• [55] On 19 May 2021, QSuper sent the plaintiff a procedural fairness letter.
• [56] On 23 June 2021, QInsure declined the claim and issued a statement of reasons and communicated this to the plaintiff. On 10 August 2021, the plaintiff sought a review of the decision, referring to:

"C6-C7 spinal issues giving from work - having a bulging disc from lifting over 50kgs without being shown correct form, my first job Riviera I was not given a job description and thrown into the labour force from being a highschool dropout at age 18 and my diagnosis wasn't until 2018."

• [57] On 12 August 2021, QInsure responded to the plaintiff's email confirming that the claim was declined based on the pre-existing exclusion period. The same day, the plaintiff replied to QInsure requesting an internal review.
• [58] On 23 September 2021, QSuper wrote to the plaintiff with the outcome of the review and the statement of reasons. The original decision to decline the claim remained.
• [59] On 30 September 2021, the plaintiff further disputed the decline of the claim and stated (among other things):

"What about my physical capacities; right shoulderblade pain - nick [sic] pain days my neck will not turn fully right - back pain, upper, middle and lower! - C6-C7 has myriad of symptoms - tingling forearms, weak strength in the forearms and wrist ... How can I have a on going back problem pain after pain and cervical achieved just after my first ever job".

• [60] On 14 October 2021, QSuper again wrote to the plaintiff with the outcome of the review and the statement of reasons. The decline of the claim was maintained again.
• [61] On 16 December 2021, Dr Wong wrote a report, referring to the plaintiff's diagnoses of severe anxiety, panic disorder, agoraphobia, social phobia, autism spectrum disorder, ADHD, cervical spine (C6/C7) disc bulge abutting the anterior aspect of the spinal cord, hyperemesis secondary to those diagnoses (other than ADHD). He then stated that the plaintiff's "anxiety, panic disorder, agoraphobia and social phobia are severe enough to prohibit him from working in likely any setting".
• [62] On 15 February 2022, Beaudesert Family Practice records contained a record of the plaintiff having a telephone consultation with Dr Wong. The note contained a "TPD claim draft response" addressed to "Nari",[6] stating, amongst other things:

"You state that you require a medical practitioner to confirm that Riley's current condition is not a pre-existing condition present throughout his childhood. A letter from 24/7/2018 provided by Riley from his psychiatrist, the late Dr Katz, states that Riley exhibited depression and anxiety following the separation of his parents when he was four.

You request that I amend my answer to take into account a back injury that occurred during his employment as a boat labourer and detail whether the back injury contributed to further decline in Riley's mental health. I do not recall Riley mentioning this back problem. I have never treated him nor documented this this [sic] back problem as a presenting complaint. This is the first time I have seen the CT report you provided. I cannot reasonably comment on this."

• [63] On 2 April 2022, the plaintiff suffered a violent assault outside of his home when, on his account, he was attacked by three men outside of his home. He was hospitalised that day.
• [64] On 5 April 2022, the plaintiff's solicitor emailed QSuper a copy of Dr Wong's report of 16 December 2021 and the radiology report dated 18 February 2019.
• [65] On 12 August 2022, Dr Siddle provided an opinion that the plaintiff's disablement was due to conditions of anxiety, ADHD, and ASD. He noted that the plaintiff had displayed signs and symptoms of these disorders since childhood. Although the documentation suggested that the plaintiff's social phobia had only been present since 2018, it was likely attributable to his underlying conditions, as difficulties in social interactions are a common feature of ASD. Dr Siddle would not consider the social phobia on its own as likely to cause the plaintiff to be permanently unable to return to work.
• [66] On 15 August 2022, Dr Goode provided an opinion that, in the apparent absence of any significant accompanying upper limb radiculopathy, a C6/C7 disc bugle on its own would not deem the plaintiff unlikely ever to be able to work again in a job for which he is reasonably qualified by education, training, or experience. He noted that:

"Cervical spine disc budges [sic] are quite frequently reported on CT and MRI imaging, and these types of disc bulges mostly simply reflect minor constitutional degeneration, and very frequently are simply incidental and clinically insignificant".

• [67] On 16 August 2022, QSuper, on behalf of QInsure, sent a procedural fairness letter to the plaintiff. On 31 August 2022, the plaintiff's solicitors responded to the procedural fairness letter. This same day, QInsure wrote to Qsuper with a response to the plaintiff's complaint.
• [68] On 1 September 2022, Dr Deveney certified that the plaintiff has PTSD (albeit yet to be confirmed by a specialist psychiatrist). He stated that the plaintiff's PTSD symptoms were not documented until April 2022. Further, he noted that the plaintiff also has ADHD, ASD, a spinal injury, and agoraphobia.
• [69] On 1 November 2022, QSuper again wrote to the plaintiff with the outcome of the review and statement of reasons. They again maintained that the claim was declined.
• [70] On 29 October 2024, Dr Wong wrote a letter addressed to the Court, stating the plaintiff's:

"medical history includes significant mental health challenges, including diagnoses of Social Phobia, Autism Spectrum Disorder, ADHD, and Post-Traumatic Stress Disorder" ... "Given the chronic and severe nature of his mental health conditions, the persistence of symptoms despite treatment, and his inability to maintain employment, I support Mr Byrnes-Reeve's application to access his superannuation benefits".

• [71] On 10 December 2024, Dr Dhupelia prepared a radiology report stating:

"minimal diffusive disc bulge is noted only at C6/C7. This is non neurocompressive."

He referred to the plaintiff as having "chronic cervical and thoracic pain since 5 years. Old injury. Define."

• [72] On 30 January 2025, a Dr Gupta wrote a letter to a Dr Sadasivan, stating that the plaintiff:

"has been complaining of upper back pain since last 5 years. Pain is radiating to both upper limb and lower cervical spine. Pain is gradually getting worse. Been investigated with MRI scan of thoracic spine."

• [73] Accordingly, the lengthy chronology and multiple medical opinions demonstrate the long history of health issues the plaintiff has endured. However, the critical question is whether the plaintiff has a total and permanent disability pursuant to the policy.

• [74] On 15 May 2020, the plaintiff completed and signed a total and permanent disability claim. In that form, the plaintiff details his illnesses/injuries as "depression, agoraphobia, autism, ADHD, Aspergers, and nervous hypersensitivity":

When did you first see a doctor about your illness or injury? (dd/mm/yyyy)

When did you first start to experience signs or symptoms? (dd/mm/yyyy)

When was your illness first diagnosed or when did your injury occur? (dd/mm/yyyy)

When did you stop working because of your illness or injury? (dd/mm/yyyy)

Have you suffered from a similar illness or injury previously?

Been experiencing symptoms of my illnesses since I was 10 but wasn't diagnosed until 24/07/2018."

• [75] The plaintiff responded to questions about his most recent employer:

Please describe your job in detail, including all of your duties and responsibilities, and attach a position description if possible. If your role involves manual handling duties (lifting, carrying, pushing, pulling) please provide details of these specific duties.

Unpacking stock, strain on back from 20kg boxes of cheese to be properly stored, driving/Delivering, making pizzas, serving customers, taking orders over the phones."

"If no, did you terminate your employment due to any illness or injury?

Please provide the exact date of termination? (dd/mm/yyyy)

• [76] Dr Wong, the plaintiff's treating doctor at the time, completed the section of the form requiring a response from the treating doctor as to diagnosis:

"Based on your objective clinical findings, please confirm the patient's diagnosis.

Severe debilitating anxiety, agoraphobia, attention deficit disorder, Aspberger's, autistic spectrum disorder.

Please describe your objective findings that support the diagnosis (e.g., if the condition is a mental illness, provide criteria as per DSM-V; if condition is musculoskeletal provide ROM and strength test results).

Abrupt surge of intense fear that reaches a peak within minutes with severe debilitating physical manifestations (see below). Daily occurrence.

Please outline the patient's symptoms relating to this condition.

Typical physical manifestatiosn [sic] include, but are not limited to tremors, hyperventilation, hyperemesis, globus sensation.

When did the patient's symptoms for this condition first occur? (dd/mm/yyyy).

Has the patient ever experienced these symptoms, or similar symptoms, previously?

• [77] With respect to the circumstances of whether the injury or illness would prevent the plaintiff from working, Dr Wong stated the following:

"Is the patient currently performing their usual work duties?

If the patient has ceased all work, have they been certified in writing by you or another medical practitioner as unable to work due to the injury or illness?

If yes, what date was certification completed? (dd/mm/yyyy).

How do the symptoms affect the patient in their day to day activities?

Severe debilitating anxiety. Unable to work. Difficulties with activities of activities of daily living when under stress and/or anxious.

How do the symptoms impact on the patient's functional ability to undertake work?

Some examples of debilitating anxiety at work are involuntary hyperemesis, catatonia, tremors.

If the patient has ceased all work, do their symptoms present a barrier to their return to work?

• [78] The plaintiff's previous lawyer sent Dr Wong various questions relating to the plaintiff's health issues and capacity to work. Dr Wong responded on 16 December 2021 with the following:

1. Panic disorder,
2. Agoraphobia,
3. Social phobia,
4. Autism spectrum disorder,
5. ADHD,
6. Cervical spine (C6/C7) disc bulge abutting the anterior aspect of the spinal cord, and
7. Hyperemesis secondary to [the aforementioned diagnoses]".

• [79] Dr Wong noted that, while he first saw the plaintiff on 7 February 2020, diagnoses 1-6 came from 24 July 2018 from psychiatrist Dr Katz and diagnosis 7 came from a radiology report from a CT scan dated 18 February 2019.
• [80] Dr Wong, in that same letter, answered the following questions in this way:

"Do you believe our client is likely able to return to full time work within his education, training and experience?

Do you believe our client's condition interferes with his ability to return, gain and maintain employment within his education, training and experience. Please detail.

Yes, his anxiety, panic disorder, agoraphobia, and social phobia are severe enough to prohibit him from working in likely any setting. His panic attacks manifest as gagging, vomiting, palpitations, headaches, and globus pharyngeus, symptoms that would preclude most from working in any setting. Furthermore, he has multiple triggers for his severe anxiety and panic attacks including social situations, sensory stimulus, and stressors that the average person would consider normal for a typical work environment."

• [81] With respect to his mental and physical conditions, Dr Wong stated the following in that letter:

"What is the prognosis regarding his mental condition?

His condition is likely to be a long term and probably permanent for him. He is stable on his current medication regime, however his anxiety symptoms are very easily triggered."

What is the prognosis regarding his physical condition?

Riley's hyperemesis is likely to persist because diagnoses 1-5 and 7 are likely to persist."

• [82] On 23 June 2021, QInsure stated that, in their opinion, the plaintiff's TPD claim is not payable:

"After reviewing all the available information, this decision has been made because:

• The information received indicates that Riley Byrnes-Reeves Insurance Policy is subject to a Pre-Existing Exclusion Period Clause
• The medical information received indicates that the Total and Permanent Disablement was related to an illness or injury, the signs or symptoms of which existed prior to the date the cover commenced.

However, the information received supports Riley Byrnes-Reeves has a permanent incapacity as defined in the SIS Regulations."

• [83] QInsure's final decision on 1 November 2022, was:

"On 23 June 2021, QInsure advised Maurice Blackburn Lawyers that our assessment was finalised and assessed Riley Byrnes-Reeves as having a Total and Permanent Disablement Claim with a Date of Disablement 8 May 2019.

Riley Byrnes Reeve's disablements were assessed as relating to an illness or injury the signs and symptoms of which existed prior to the date the cover commenced being 26 October 2017, there was no entitlement to a Total and Permanent Disablement Benefit payable.

On 23 June 2021, QInsure also assessed Riley Byrnes Reeves as having a Permanent Incapacity; therefore he was entitled to access his preserved benefits that he held in his superannuation account.

Therefore, after consideration of all the medical evidence supplied by Riley Byrnes-Reeves and obtained by QInsure and applying the definitions and clauses of the Insurance Policy, QInsure maintain the decision made on the Statement of reasons dated 23 June 2021 that no benefit is payable."

• [84] QInsure set out in the final decision the voluminous material that it relied on to assess the plaintiff's claim.[7]

• [85] Exhibited to the plaintiff's affidavit sworn on 21 November 2024 are reports, including from Dr Deveney and Dr Gupta, neither of whom were called by the plaintiff.
• [86] Attached to Dr Deveney's report is a certificate of permanent incapacity. Dr Deveney first saw the plaintiff on 7 April 2022 and notes:

"Mr Riley Byrnes-Reeves has Posttraumatic Stress Disorder yet to be confirmed by a Specialist Psychiatrist.

Riley also has ADHD, ASD, a spinal injury and Agoraphobia.

The latter four diagnoses were described and confirmed on 22/1/21, when Dr Mahapatra interviewed Riley ...

The PTSD symptoms were not documented until April 2022."

• [87] The plaintiff also relies on the opinion of Dr Gupta, who referred the plaintiff to another doctor, Dr Sadasivan. In that letter, Dr Gupta writes:

"Thank you for seeing Riley Byrnes-Reeves for an opinion and management. He has been complaining of upper back pain since last 5 years. Pain is radiating to both upper limb & lower cervical spine. Pain is gradually getting worse. Been investigated with MRI scan of thoracic spine."

• [88] Also exhibited to the plaintiff's affidavit are the results of a computed tomography scan of the plaintiff's spine. The reported results from Gold Coast Radiology, dated 18 February 2019, are:

"CT CERVICAL FINDINGS. Cervical spine shows normal alignment. Within the limitations of CT imaging no gross abnormalities to the contents of the spinal canal. Normal appearance to the structures of the posteria fossa. Likewise no concerning findings within the prevertebral soft tissues. At the C6/C7 level there is a small right parasagittal disc bulge. This abuts the anterior aspect of the spinal cord. There is minor narrowing of the right exiting foramen. Left foramen appears patent. Over all remaining levels the disc heights are preserved with no foraminal narrowing, spinal canal stenosis, disc bulges or face arthropathy.

COMMENT. At the C6/C7 level there appears to be a focal disc bulge on the right side showing mass effect on the spinal cord. This should be further assessed with MRI.

CT THORACIC SPINE. Thoracic spine shows normal alignment and curvature. No end-plate or wedging deformities. Normal appearance to the costovertebral, costotransverse and facet joints globally throughout. No evidence of Scheuermann's disease, scoliosis or an spinal dysraphism.

COMMENT. Normal CT assessment of the thoracic spine."

• [89] The plaintiff relies on the opinion of one of his treating psychiatrists, Dr Mahapatra, who provided opinions on the following questions:

"1. Based on your clinical assessment is Riley unlikely ever to be able to work again in a job for which they are reasonably qualified by education, training or experience?

In my opinion, Riley is unlikely to work again in the foreseeable future in a job for which he is reasonably qualified by education, training or experience.

2. Please advise if based on the [sic] Riley's condition/s, if in the future he could be reasonably expected to acquire additional education, training or experience within a suitable training/rehabilitation program to aid in return to work? Please provide details.

He cannot be reasonably expected to acquire additional education, training or experience within a suitable training/rehabilitation program with an aim to return to work. Since he initially consulted me in January 2020, his symptoms have not improved significantly enough. He has been suffering from severe Social Phobia on a background of Attention Deficit Hyperactivity Disorder and Autism Spectrum disorder. When he initially presented to me in in [sic] January 2020 after referral from his GP Dr Muhammad Ali Shah, Eaglesfield Medical Centre, he was suffering from severe anxiety and panic in social situations. He was struggling with his focus and concentration. He was not sleeping well. He was feeling irritable and angry. He was not able to make phone calls and was scared to go out. His mother said that he was unable to leave his room without feeling nauseous and gagging. He has been seeing his psychologist for six years and has been trialled on Dexamphtamine [sic], a few antidepressants and antianxiety medications. I put him back on Dexamphetamine and have trialled many antidepressants and anxiolytic medications since then. He has not been able to tolerate many medications due to side effects. In his most recent appointment on 22 January 2021, he continued to present with high anxiety which continued to affect his interactions with people and day-to-day functioning.

3. Are there any other factors which you consider relevant in assessing their capacity for future work?

His inability to cope with severe anxiety seems to be the main factor affecting his capacity for future work. Though he said that some issues with anxiety started when he was in grade 7, it became much worse while he was working at a pizza shop for nearly 8 months in 2018 ... He said that he was bullied in school and while working as a disability support worker.

4. Riley has previously worked in a pizza shop and as a labourer, what should be their return to work goal, for example reduced hours, less demanding duties, alternate workplace, alternate employer, medical retirement, or other? Please share feedback.

He does not have capacity to return to work for the foreseeable future due to Social Phobia. His current medications i.e. antidepressant Mirtazapine, antianxiety Alprazolam and ADHD medication Dexamphetamine have provided some relief in his symptoms but not enough for him to be suitable for education or training for work.

5. Riley's insurance has Pre-Existing Condition clause associated to his claimed conditions; therefore, it needs to be determined if (a) in your opinion, is the current disablement either physical of psychiatric related to illness or injury the science of symptoms of which existed prior to the effective date of insurance of 26 October 2017?

He suffers from Attention Deficit Hyperactive Disorder and Autism Spectrum Disorder which have been in existence since his childhood. In spite of this he was able to attend school and worked in various jobs. Though he reported having issues with anxiety since grade 7, he developed severe Social Phobia in 2018 when he was working in a pizza shop.

6. If the Riley [sic] is permanently unable to return to work within his education, training or experience from what date would you confirm the certificate and from?

I certify him to be permanently unable to return to work as per his education, training or experience from 8 May 2019 as he was too unwell to continue working at the pizza shop at that stage."

• [90] Dr Mahapatra was the only doctor that the plaintiff called to give evidence.
• [91] The plaintiff's position has remained consistent throughout the hearing of the matter. His view is that he is unable to work again because of a permanent injury sustained at Riviera and, as such, is entitled to claim on his superannuation.
• [92] The plaintiff's written submissions, in their entirety, are:

May it please the Court. My name is Riley Byrnes-Reeves. I stand before you today not as a seasoned advocate, but as a young man whose life was derailed before it even had a chance to begin. Every word I speak is a struggle-my spine screams, my hands tremble, and my breath is never truly free. But I am here because silence would be surrender, and I refuse to be forgotten.

In October 2017, I entered the workforce at Riviera Marine. I was just 17 years old. A teenager. Vulnerable. Eager to prove myself. I was thrown into an adult world, placed on 10-hour shifts without training, without a safety briefing, without care. I was a kid expected to carry a man's weight in a brutal environment. And I did it, every day-while my fingers turned purple from Raynaud's phenomenon, a condition I was diagnosed with in 2009. I am not blaming QSuper or Riviera for this diagnosis, but the harsh conditions undeniably worsened its effects. At the time, my spine was strained beyond repair, and my mental health began to crumble in the shadows.

What I endured at Riviera was not work-it was exploitation. I was left unsupervised in dangerous conditions, and I broke under the pressure. I sustained a spinal cord injury, and with it came a tidal wave of psychological destruction. Since then, I have lived with relentless pain, PTSD, and anxiety so intense it cages me in my own mind. In 2022, after being brutally assaulted outside my home while recovering from surgery, my vision blurred in my left eye. My condition-both physical and mental-has spiralled further into darkness. And all the while, I was dismissed, left without the care or protection I begged for.

When my mother was rear-ended by a three-tonne truck in 2018, I became her full-time carer-despite being broken myself. I had no support. No guidance. No lifeline. My mental health declined further, yet instead of compassion, I was met with suspicion. QSuper and A.R.T. turned their backs on me. They weaponised assumptions, labelled me with conditions I never had, and used those labels to deny me justice. Their treatment was cold, calculated, and crushing.

On 22 April 2022, while still healing from surgery, I was attacked by three men. Beaten. Left bleeding. Left alone. No ambulance came. Police offered no care. My mother-already injured-found me collapsed, dazed, and bloody. I still see it when I close my eyes. I still feel the blows, the fear, the isolation. The trauma didn't end that night. It haunts me. My memory fades. My energy drains. My sense of safety is gone. I live in constant survival mode, trapped in housing where I am stalked, harassed, and ignored.

I come to this Court not for pity, but for justice. I only ever wanted to contribute, to care for my mother, to build a life. Instead, I was chewed up by a system that thrives on silence and indifference. That system left me broken, untreated, and unheard. I ask this Court to recognise the truth of my suffering-not just in diagnosis or documents-but in the daily agony of my existence. I seek full compensation, recognition of my lifetime care needs, and a ruling that says: what happened to me matters. That I matter.

• [93] It should be noted that the plaintiff refers to a number of irrelevant matters and also matters for which there is no evidence. Further, the submissions are vague as to what evidence QSuper chose to ignore.
• [94] In particular, the plaintiff focuses on his mental health issues. On his evidence, he is living with significant mental health symptoms. The question is not whether he suffers from a mental illness, but whether the mental illness was a pre-existing condition as defined by the policy.
• [95] Gleaning what I can from his submissions, the defendant makes a number of complaints:

(a) that his C6-C7 spinal issues were not considered;

(b) the physical consequences of his mental health conditions (such as vomiting, gagging sensation and dry throat) were not considered;

(c) his mental health conditions were not pre-existing; and

(d) due consideration was not given to the balance of the medical evidence to make a true and genuine assessment of the evidence provided.

The first step: validity of the insurer's opinion

• [96] In relation to the first step, Meagher JA (with whom McColl JA and White JA agreed) in MetLife Insurance Ltd v Hellessey [2018] NSWCA 307 stated that:

"[7] The relevant principles are those stated by McLelland J (as his Honour then was) in Edwards v Hunter Valley Coop Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113, and approved by this Court ... MetLife's liability under the policy turned on its being satisfied as to the extent of the Insured Member's incapacity. Both in considering that question and in determining whether it was so satisfied, MetLife was required to act reasonably and fairly. And breach of one or more of these overlapping implied obligations would deprive the decision of contractual effect.

[8] Thus, an insurer's decision may be set aside if it is shown to be unreasonable on the material before the insurer. It will not answer that description merely because the Court would or could have reached a different opinion on that material, because "reasonable persons may reasonably take different views" ... In addition, however, a decision may be set aside if the process of consideration underlying it was not undertaken reasonably and fairly, even if the outcome itself is not also shown to have been unreasonable on the material before the insurer. Again, more than one reasonable process of consideration may be open in the circumstances, but the process adopted by an insurer would not cease to be unreasonable simply because another, and reasonable, process to the same conclusion happened to exist.

[9] For example, in Shuetrim, the insurer's breach of that duty was in not considering a "body" of relevant medical and psychiatric opinions: at [154]. And, in Hannover Life v Jones, the failure to take into account the Insured Member's psychological makeup was a "failure to act reasonably and fairly in undertaking the task of forming the opinion as to [his] disablement": at [134]. As will become apparent, it is not necessary in this appeal to attempt a comprehensive description of the evidentiary material required to be considered by an insurer because the lay witness material considered below would meet any such description: see, in another context, Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [65] (Basten JA, McColl and Simpson JJA agreeing), identifying the evidence required to be considered by an administrative decision-maker by reference to its apparent credibility, relevance and materiality to a claim."

• [97] In relation to the first step, the relevant principles are: [8]

(a) the insurer must act reasonably and fairly in forming the opinion;

(b) the insurer's opinion is not unreasonable simply because the Court would form a different view;

(c) the insurer's opinion will be invalidated if the process was not undertaken reasonably and fairly;

(d) an opinion that is reasonably open on the evidence can still be invalid if the insurer did not engage with the relevant evidence;

(e) the insurer's opinion will be invalid if it does not answer the correct question or does not take into account relevant evidence;

(f) in deciding whether the insurer's opinion is defective, the Court should not take into account material that was not before the insurer when forming its opinion;[9]

(g) where an insurer has reconsidered a claim multiple times, the focus is usually on the last of the decisions.[10]

• [98] The process by which the insurer's opinion was formed is set out in an affidavit of the Group Life Claims Leader of the third defendant. In summary:

(a) the plaintiff's claim was lodged on 10 June 2020;

(b) various information was provided to the insurer in support of the claim between 10 June 2020 and 6 May 2021;

(c) on 19 May 2021, the insurer sent the plaintiff (via his solicitors) a procedural fairness letter and invited the plaintiff to respond to it;

(d) on 10 June 2021, the plaintiff (via his solicitors) responded to the first procedural fairness letter;

(e) on 16 June 2021, the third defendant sent its claim decision to the trustee of the fund, being a decision to decline the claim;

(f) there were then subsequently a series of complaints by the plaintiff and responses by the insurer; and

(g) on 1 November 2022, the third defendant sent its final claim decision.

• [99] I am satisfied that the insurer did consider the plaintiff's C6/C7 spinal issues and his mental health.
• [100] It is noted that the plaintiff only raised the C6/C7 spinal issues after the first decision declining the claim. The final decision, which considers the spinal issues:

(a) sets out the substance of the report from Dr Wong dated 16 December 2021;

(b) notes that the 18 February 2019 CT Cervical and Thoracic Spine scan was considered; and

(c) refers to Dr Goode's report addressing the claimed C6/C7 spinal issue (and the 18 February 2019 CT scan).

• [101] I note Dr Goode's report is dated 15 August 2022. On 16 August 2022, the insurer sent a procedural fairness letter to the plaintiff's legal representatives. On 31 August 2022, the plaintiff's legal representatives responded to the procedural fairness letter.
• [102] Accordingly, in relation to the plaintiff's spinal issues, I am satisfied that:

(a) the insurer engaged with the relevant evidence; and

(b) the insurer's decision was reasonably open on the evidence before it.

• [103] In relation to the various symptoms of the plaintiff's claimed mental health conditions, I am also satisfied that they were considered in all decisions made by the insurer, including the final decision.[11]
• [104] The basis for the insurer's decision was not that the plaintiff did not have such symptoms, rather that his claimed conditions related to a "Pre-Existing Condition" within the meaning of the policy. The policy defined such conditions as:

"Pre Existing Condition means an Illness or Injury the signs or symptoms of which existed prior to the date the cover or additional cover commenced;

Pre Existing Exclusion Period means a period in which an Insurance Benefit will not be payable if the Illness or Injury, of which the claim is subject, is related to a Pre Existing Condition;

Unless otherwise expressed in this policy, a Pre Existing Exclusion Period in relation to an Insured Person commences on the date the Insured Person became covered for the relevant type of cover."

• [105] It must be borne in mind that the plaintiff became a member of the fund on 26 October 2017[12] upon which his insurance coverage commenced.[13]
• [106] Accordingly, in relation to the plaintiff's mental health issues, I am satisfied that:

(a) the insurer engaged with the relevant evidence; and

(b) the insurer's decision was reasonably open on the evidence before it.

• [107] I accept that the insurer's decision is reasonably open on the material it was considering for the following reasons:

(a) in the claim form itself, the plaintiff identified that he first experienced symptoms of his illness since from 27 July 2017;

(b) the information submitted in support of the claim included:

(i) a referral from Dr Abdul-Razack dated 18 October 2017, which referred to the plaintiff's "long H/O anxiety, depression, panic attacks";

(ii) Dr Katz's letter dated 24 July 2018 which referred to the plaintiff being a person who describes "a long history of anxiety and depression extending back to his teens";

(iii) the plaintiff's contemporaneous email to his Riviera manager on 13 September 2017 where the plaintiff claimed that he was having a "mental breakdown" and needed stress leave; and

(iv) Dr Siddle's opinion that the plaintiff had suffered from signs and symptoms of anxiety, ADHD and ASD since childhood, and that whilst the documentation suggested that social phobia had only been present since 2018, it was likely to be due to his underlying conditions (anxiety, ADHD and ASD) and that therefore his current disablement was related to a medical condition the signs or symptoms of which existed prior to 26 October 2017; and

(c) the insurer also had regard to Dr Mahapatra's report dated 1 March 2021 referring to the plaintiff reporting having issues with anxiety since grade 7.

• [108] The plaintiff's more general contention that the insurer did not give due consideration to the balance of the material is not made out. The plaintiff has not identified any evidence which is said not to have been taken into account by the insurer.
• [109] I note that the reasons for the decision set out in detail the various evidence submitted in support of the claim to the information used to assess the claim.
• [110] Accordingly, based on the material before me, I consider that, in relation to the spinal and mental health issues, the insurer engaged with the relevant evidence and acted reasonably and fairly in doing so.
• [111] Further, I am satisfied that the process of consideration underlying the insurer's decision, in respect of both the spinal and mental health issues, was also undertaken reasonably and fairly. There was a process that was undertaken by the insurer that included the plaintiff being provided procedural fairness and the insurer undertaking multiple reviews.
• [112] Accordingly, the plaintiff does not pass the first step required to establish his claim. That is the end of the matter. The plaintiff's claim fails.
• [113] However, I will briefly deal with the next stage of the process, because, in my view, it also has no merit.

The second step: reconsideration afresh whether the plaintiff is entitled to a TPD benefit

• [114] If I concluded that the plaintiff passed the first step required to establish his claim (which I have not), then the second step requires me to reconsider on the evidence before the Court, whether the plaintiff is entitled to a TPD benefit.
• [115] That will require consideration of whether the plaintiff has proven that:

(a) "solely because of an Illness or Injury, the Insured Person has been absent from work and ... the Insured Person is unlikely ever to be able to work again in a job for which the Insured Person is reasonably qualified by education, training or experience that they have acquired or could reasonably be expected to be able to acquire in the future within a suitable rehabilitation/retraining program" (before 1 October 2019 when the plaintiff's cover expired); and

(b) whether any such Illness or Injury is "related to" a Pre Existing Condition, being "an Illness or Injury the signs or symptoms of which existed prior to" 26 October 2017.

• [116] As to onus, in Panos v FSS Trustee Corporation [2015] NSWSC 1217, Robb J stated:

"[281] The court is required to make the determination on the basis of the conventional adversarial approach. It is for the applicant to support his or her case by the necessary evidence. The Insurer ceases to have any positive obligation to assist the applicant in the presentation of his or her case.

[282] Importantly, the court has no expertise that permits it to make expert determinations of questions that cannot properly be decided without appropriate expert opinion evidence, without that evidence being provided. The entitlement of the court to draw its own conclusions based upon primary medical records is likely to be significantly restricted. The court is likely to require the assistance of appropriate expert evidence to make findings about the significance of primary medical facts and records.

[283] There is likely to be a real risk, when the question that requires determination passes from whether the Insurer has made a proper determination, to whether the court itself should find that the criteria for the entitlement to the TPD benefit have been satisfied, that evidence provided by the applicant to support a favourable determination of the claim by the Insurer may no longer suffice, when the question must be determined by the court."

• [117] In considering this stage of the process, I have taken into account all of the evidence that was before me, which included the evidence from the plaintiff and his mother.
• [118] It is clear that the plaintiff suffers from many debilitating conditions and has endured many difficulties. The plaintiff, at times, struggled during the hearing, but persevered. He, at all times, was respectful and polite to the Court.
• [119] However, as I have stated, the issue is not whether the plaintiff suffers from medical conditions. The relevant issue is whether these conditions satisfy the terms of the insurance policy.

• [120] The only witness with medical qualifications that the plaintiff called in support of his case was Dr Mahapatra. The only illness that Dr Mahapatra's evidence suggests precludes the plaintiff from working is Social Phobia.
• [121] To the extent that the plaintiff's claim relies on other mental health conditions or symptoms (such as depression, agoraphobia, ADHD, ASD, "nervous hypersensitivity" etc.), Dr Mahapatra's evidence does not support it.
• [122] However, on the plaintiff's own evidence, he was not absent from work "solely because of" social phobia.
• [123] The plaintiff's evidence was that he stopped work at Maries Pizza in 2018 because his driver's license was suspended in connection with a drink driving incident, and that he was going to leave his job at Maries Pizza anyway because he was not being given enough hours.

"‑ ‑ ‑ where it says, "Please give reasons and/or further details," and it says, "Driver's licence suspended." Can you explain why was your driver's licence suspended?‑‑‑Because after everything you've been talking about, we've been going through all my history of doctors and stuff like that, found out that there was no-one to rely on in this world. So, um, stupid, naïve me went out driving under the influence of alcohol and, um, my mate said, "Come down. Stay at my place," and he lived all the way down at, um, what was it, uh, um, Tugun. He lived at Tugun and I was at Runaway Bay. I was just sitting down at the water in the car, and then, um, I told him, "I got to pull the car over," once I got all the way down there. And I only had four beers in my system. And s - when I got all the way down there, um, we went for a cruise, and then I got out and obviously drank a bit more, and then I got out of the car. So I said, "I'm pulling us over. I got to get out. I feel sick," and, uh, that's when the cops were just knocking off and thought, "He's an easy take," and I was not even in the car. But, yeah, that's - so driver's licence suspended under DUI.

Right. And did that happen, what, in May 2018? Is that when you had your licence suspended?‑‑‑I think, yeah, would've been around that date. Yeah.

All right. And ‑ ‑ ‑?‑‑‑I didn't - when they ticked, "Employee ceasing work, voluntary," it wouldn't have been voluntary if I kept my licence. I would've left anyway, 'cause they cut me - as soon as I turned 19, they had to pay me $1.50 more with no loadings or anything like that, so they cut me down to one shift a week. I said to mum, "Mum, I'll be earning more money on Centrelink than I will be working here."

Right. So even if you hadn't had your licence suspended, you ‑ ‑ ‑?‑‑‑Either way, the job would've had to go.

You would've left because they weren't giving you enough hours?‑‑‑Yeah.

Okay?‑‑‑And - and - is this the pizza job one? And the throat problem too. See, it all correlates to the throat. This is when it started, at the Maries Pizza. I don't know what happens. I just get dried up and, uh, just - you - you can't - you just - you got to see it. But it's in the mornings. It's nervous and it's just projectile, and I can't hold it back. I can't eat breakfast, because it will come up.

What you've just said then, though, is inconsistent with what you said just before that, where you said, "If I didn't have my licence suspended, I was going to leave anyway because I wasn't getting enough hours. I wanted more hours"?‑‑‑I was basically - see, tactics. What I said earlier. Um, no, but I was, uh, having these vomit episodes and anxiety episodes dealing with multiple customer's complaints, all that. Having to drive to parking and loading zones, nearly getting me car towed because I had to run up storeys with pizza to deliver it to this bloke who couldn't come to meet me. Yeah, I've had a tough life."

• [124] After he left Maries Pizza, the plaintiff was then able to do coursework for a diploma in mental health for some 12 months, and commence a vocational placement for around 1 month, which he stopped because he was not able to obtain a prescription for medication for his conditions.
• [125] The evidence in this case supports that the plaintiff's mental health condition is, or is related to, a condition the signs or symptoms of which existed before 26 October 2017. Of relevance, the plaintiff noted in his TPD claim form that he had been experiencing symptoms of his 'illnesses' (identified in the form as "Depression, Agoraphobia, Autism, ADHD, Aspergers, nervous hypersensitivity") since he was about 10 years old. As to what the plaintiff included on this form, that plaintiff gave the following evidence at the hearing:

"So you see at the top right there, it says, "Name of your illness or injury"?‑‑‑Yeah.

And what's written there is, "Depression, agoraphobia, autism, ADHD, Asperger's, nervous hypersensitivity"?‑‑‑Yeah. That was Maurice Blackburn. They didn't put my back in.

Okay. Just pausing there, there's no mention there of Reynaud's syndrome?‑‑‑Also their fault. That's probably why they abandoned me after one year.

Well, there's no mention of asthma?‑‑‑Yeah, I know. There's a lot missing. I can see that.

Well, I suggest to you that that's intentional, because neither ‑ ‑ ‑?‑‑‑Why would I intentionally stuff my own claim up?

No, no. If you just listen to the question. You didn't put down Reynaud's syndrome or asthma because those things weren't conditions - even though they were conditions you had, you weren't claiming that they were the reason why you weren't able to work anymore?‑‑‑Once again, it's Maurice Blackburn's fault.

And I suggest you knew you could put down more than one illness or injury, because you've listened several?‑‑‑I don't know. I was, uh - how old was I? Look, it even comes under my mum's email and phone number. She was in charge at the time, because I couldn't deal with the confrontation of publicity or calls.

And - sorry, didn't mean to cut you off?‑‑‑No, no, no.

And I suggest the reason why the C6, C7 spinal bulge isn't written there is because it wasn't something that was stopping you from working?‑‑‑I think that was probably because of the medicine that I got put on once I found a psychiatrist. It numbed the pain. But then it's come back everywhere. Now it's all hitting the, uh, thoracic part of the spine.

So you weren't suffering from pain that was stopping you from working ‑ ‑ ‑?‑‑‑Yes, I was.

‑ ‑ ‑ from your back?‑‑‑I was, but I di - obviously didn't put it in there.

Okay. And you'll see down the bottom there's a little - there's writing in a box in 15 the bottom-right corner that says, "Been experiencing systems of my illnesses since I was, but wasn't diagnosed until 24/07/2018"?‑‑‑Yeah. I mean Renaud's disease, 2009, when I was 10.

Well ‑ ‑ ‑?‑‑‑But I forgot to put - in - insert a comma. Just one little mistake.

HER HONOUR: So where do you say the comma should go - should have gone?‑‑‑It should gone, um, "Been experiencing" - I don't know why it says "systems".

MR MAY: Do you agree that should be "symptoms"?‑‑‑Yeah. I don't know why it says "systems".

HER HONOUR: Yes?‑‑‑I was obviously under a lot of stress.

Okay. Where do you say the comma should go?‑‑‑It should go - "Experiencing symptoms and illnesses" - would have been after "10".

So you say it should say, "Been experiencing symptoms of my illness since I was 10," comma ‑ ‑ ‑?‑‑‑Yeah. Yep.

MR MAY: And can I suggest that it doesn't make sense for that to be referring to Reynaud's syndrome for a couple of reasons. The first one is you don't list Reynaud's syndrome or condition in the list of illness or injury?‑‑‑No. I - I see that. I thought I just put the worst ones down, but apparently, um - yeah. If I - look, if I was 26 years of age back then applying for the - doing this, I'd be more on task with it.

Okay. The second reason is that the words in that box - you used the word "illnesses", plural, not just "illness". So again, that's suggesting ‑ ‑ ‑?‑‑‑Um ‑ ‑ ‑

‑ ‑ ‑ that it's talking about all the illnesses in the box up - above it. Do you agree?‑‑‑Nah.

And then ‑ ‑ ‑?‑‑‑Nah. I don't agree with that, sorry.

And then the third reason is that you weren't diagnosed with Raynaud's Syndrome 5 on the 24th of July 2018?‑‑‑Yeah, I know. That was a - yeah, I - 24th of July two thousand - I know.

So ‑ ‑ ‑?‑‑‑I - I mean, yeah. Look, this is why it's come to court, so I can - can speak about - I might - I was, uh - how old was I - I mean, I know I was evicted at the time and we moved out to - wait, this is 2018. Yeah. Southport Library. That's where it was done.

Isn't ‑ ‑ ‑?‑‑‑So I was 18. Mmm-hmm. When did I fill this out?

Twenty - you signed it on the 15th of May 2020?‑‑‑Fifteenth of May 2020. Yeah. That's when I - that's when Maurice Blackburn, I got, uh, them, and then they choofed off.

So what I suggest is when you say in the box down the bottom, "Been experiencing symptoms of my illnesses since I was 10" ‑ ‑ ‑?‑‑‑You could tell I was under stress. It's - I mean, it's completely written wrong, and I - yeah, as you said, I did not add in everything. I mean, the - the boxes were very small. It doesn't even look like it's my writing. I mean, why is there one pen and then the rest is all typed? It looks fabricated.

Can I suggest that the reason you wrote - signed the document containing what's in the box at the bottom-right is because you had been experiencing symptoms of the illnesses mentioned in the top-right since you were 10?‑‑‑No, that's not right, because I didn't know I had them.

You knew you had the symptoms?‑‑‑No, I didn't. I didn't until I saw Maxwell Katz. I nev - 'cause as we were going through with Dr Gundru and all that, they - they weren't referring me to the right people.

And all that Dr Katz did, I suggest, was ‑ ‑ ‑?‑‑‑He put me on the right path.

‑ ‑ ‑ put a label on the symptoms you'd already been experiencing for many years?‑‑‑Well, I had to show him, you know, doctor's reports and stuff like that. And they keep saying they want me to go to psychology, and then he just went, "Nah. Doesn't work and you're not going to listen to it." 'Cause all they go on about is fight or flight all the time. There's no real - I don't - I just couldn't understand what they were saying, so I got angry with them and walked out on that too."

• [126] Prior to commencing at Riviera, and by the end of 2016, the plaintiff had:

(i) seen a psychologist approximately 5 times;

(ii) been prescribed and was taking Cymbalta for depression (or depression and anxiety);

(iii) visited a doctor on numerous occasions in 2016 for mental health concerns, and reported symptoms of poor sleep, low self-esteem, depressed mood, being anxious, irritability and panic attacks; and

(iv) been diagnosed as having 'depression/anxiety'.

• [127] The medical records are littered with entries, diagnosing the plaintiff with conditions that existed prior to starting work at Riviera on or around 13 July 2017, let alone before the policy commenced on 27 October 2017.
• [128] For example, Dr Gundru's notes refer to a consultation with the plaintiff on 15 September 2016, where she noted the plaintiff as being diagnosed as having depression/ anxiety. In relation to this consultation, the plaintiff stated:

"So what I want to suggest is in a visit on the 15th of September 2016 with Dr Gundru, you reported to her having some panic attacks. Do you see that halfway down the history there?‑‑‑Uh, hang on. Mmm.

Yeah. Bottom third of the page?‑‑‑Ah, yep. "Some panic attacks".

So ‑ ‑ ‑?‑‑‑Yeah. I don't know. Once again, her notes, not mine.

Well, what I'm suggesting to you is that she's writing that because you told her in this consultation that you'd been experiencing some panic attacks?‑‑‑Yeah. I - I'd say so, yes.

And you told her that, because you had been experiencing panic attacks?‑‑‑Yeah.

And the panic attacks that you were experiencing, what they involved were things like a gagging sensation?‑‑‑No.

Globus - trouble swallowing?‑‑‑No. I never had to carry a water bottle around until it was for work.

The reference to having "tried a psychologist x5 in the past" ‑ ‑ ‑?‑‑‑Didn't help.

But that's talking about the headspace psychologist; is that right?‑‑‑Yeah, it's that, yeah.

Okay?‑‑‑Yeah, because it says in the past - yeah, it would be the headspace one.

And you'll see it says there, "Patient keen to start medication to ease symptoms." Is that right? Did you tell her you were keen to start medication to ease symptoms?‑‑‑Yeah. Now realising it, she should have, ah, referred me to a psychiatrist, not psychologist. They don't work.

And then, if you go over the page, you'll see there's a list of symptoms either present or not present, and the ones that are present are poor - the ones I want to draw to your attention are poor sleep, low self-esteem, depressed mood, anxious, irritability, and panic attacks. And they were all symptoms that you reported to Dr Gundru in that visit?‑‑‑Mmm.

And you reported them because you had those symptoms?‑‑‑Yeah, I did. Over girlfriends and having no friends. Who would you talk to, if you had the same problem?

And you'll see further down that page, it's got, "Diagnosis: depression/anxiety"?‑‑‑Yeah, well, that's what - yeah. I see that. I do.

And that's what she diagnosed you as having?‑‑‑Yeah, she diagnosed me as, yes.

Right. And so you knew that in September 2016?‑‑‑Yeah, I've got a very good memory of that."

• [129] Twelve days later, the plaintiff returned to Dr Gundra stating that he felt that his symptoms were worsening. The plaintiff gave this evidence about seeing Dr Gundru at the hearing:

"And you'll see there, under History it says, "Feels that symptoms have worsened"?‑‑‑I see that.

And do you remember going to see Dr Gundru and telling her that your symptoms had worsened?‑‑‑Yeah. I do remember that.

And that was true, your symptoms had worsened?‑‑‑No, that was because of the Cymbalta, it didn't work. That's why she wrote that.

Well, so you agreed a moment ago that you told her that your symptoms had worsened, and what I'm suggesting is, you told her that because your symptoms had worsened?‑‑‑Yeah, after she prescribed me on Cymbalta.

Right. And you see under that, she records you telling her you "feel very teary". You told her that?‑‑‑Yeah, once again, high school stress, I can't hide that.

And when you say high school stress, this was significant enough ‑ ‑ ‑?‑‑‑I was being bullied. A lot.

I understand. And the way that was making you feel was serious enough that you went to the doctor a number of times about it?‑‑‑Yeah, and the doc- doctor gave me no help.

Yep. If you go down to page - well, sorry, further on page 1446, under the heading Psychiatric, there are similar symptoms noted there. So again she notes poor sleep, low self-esteem, depressed mood, anxious, irritability, panic attacks. I want to suggest they were symptoms you told her you were having?‑‑‑Ah, I know poor sleep was one, definitely. Low self-esteem, definitely. I never told her - I never said, oh, I've got a depressed mood, Doctor. I never said that. But I do see that. Anxious, well, that was probably about going back to high school to get bullied again.

And again, I want to suggest, any time there's a reference to panic attacks here, it's referring to those kinds of things I was talking about earlier, where you feel things like nausea, gagging ‑ ‑ ‑?‑‑‑Yeah, that came in 2018.

Right?‑‑‑After the Riviera job. I needed that and then worked at Maries Pizza. And then dealing with all these - communication with all these people, I don't know what happened. I had a breakdown.

I'll come to that. But you described to Dr Gundru on a number of occasion [sic] having experienced panic attacks, yes?‑‑‑Mmm.

And you were experiencing panic attacks in grade 11?‑‑‑Not that I remember.

Is there any reason you would have been telling Dr Gundru ‑ ‑ ‑?‑‑‑Maybe it would have been about - oh, I don't know. Um, being bullied. I don't know, having to play footy with the guys that bullied me. Ah, you know, they stole my wallet one day [indistinct] and all of that.

And all of that was making you feel really anxious about being at school?‑‑‑This is high school we're talking about, yeah. Yeah."

• [130] On 4 November 2016, Dr Gundra's notes record that the plaintiff needed a script for Cymbalta and "Tolerating well and nil major side effects" to which the plaintiff states:

"‑‑‑Yeah. I don't know why, but obviously she kept throwing me on and off it. I kept saying it didn't work, but she insisted on putting me back on it. Once again, out of my hands."

• [131] Around August or September 2017, the plaintiff saw Dr Abdul-Razack and reported being stressed from work. Dr Abdul-Razack suggested he speak to a psychologist.
• [132] On 11 September 2017, the plaintiff left work at Riviera.
• [133] On 13 September 2017, the plaintiff sent an email to Riviera explaining why he left without notice on 11 September 2017 and stated:

"Sorry for no notice Bryan I was feeling a little stressed out with the requirements of me on Monday, I was having a mental breakdown, I need a week of for stress leave and can get a medical certificate if that's what's needed but at the end of the day it's your choice to keep me on or terminate me."

• [134] A letter from Dr Abdul-Razack submitted in the course of the claim process, dated 18 October 2017, stated:

"Thankyou for seeing Mr Riley Byrnes-Reeves, age 18 yrs, for favour of management of his long H/O anxiety, depression, panic attacks, please".

• [135] Dr Katz's report, tendered by the plaintiff, states:

"Riley indicated that ... he was also the object of bullying at school because he was detached and a loner due to difficulties in relating socially and interacting spontaneously with his peers" and "described a long history of anxiety and depression extending back to his teens and multiple trials of antidepressants which have never had any benefit in altering his emotional and personal functioning."

• [136] I note that the plaintiff acknowledged at the trial that he was the source of the information set out in Dr Katz's report and that what he told Dr Katz was true.
• [137] As already stated, the only witness called by the plaintiff was Dr Mahapatra.
• [138] Dr Mahapatra does not say that the plaintiff did not have any relevant condition, the signs or symptoms of which existed prior to 26 October 2017. He was not treating the plaintiff at that time, and so he can only express opinions based on what he understands to be the plaintiff's circumstances prior to that time.
• [139] I note that what Dr Mahapatra claims to have been told is broadly consistent with much of the other evidence in the proceeding. For example, the plaintiff himself gave evidence of having been to "about seven different schools" and "not getting along too well with high school mates". He also stated that difficulties with bullying not fitting in at school led to him being put on Cymbalta.
• [140] Dr Mahapatra was asked at the hearing whether it was likely that, by 2016, the plaintiff had some kind of anxiety disorder, to which he responded:

"answering your question, there is a likelihood that he was suffering from anxiety also, answering your question, but we don't have any proof of that".

• [141] Notably, the plaintiff did not call Dr Wong. Following the plaintiff's request for subpoena, Dr Wong responded to the plaintiff on 26 June 2025 and this correspondence was tendered. In what is entirely inconsistent with his previous professional opinion about the plaintiff's capacity to work, Dr Wong stated:

"I am mindful of my obligations to the Court, and in particular, to provide honest evidence if I am validly subpoenaed. If you intend to call me, I anticipate that I will be required to provide my views on whether you meet the threshold for 'total and permanent disability' and whether you have capacity for work. Based on the clinical records, our interactions, specialist input, and examinations, my professional view is that you do not have a 'total and permanent disability', and that you have a capacity for work. I say this not to be dismissive of your valid concerns and the difficulties you have faced with your health, but rather to allow you to consider whether you wish to call me as a witness in the proceedings."

• [142] Accordingly, it is difficult to place any weight on Dr Wong's opinion (dated 29 April 2021) when:

(a) he was not called; and

(b) a further and later letter was tendered (dated 26 June 2025) which stated that his medical opinion was that the plaintiff did not have a total and permanent disability.

• [143] The defendants called Dr Siddle who relevantly stated:

"I would consider the disablement is due to the conditions of anxiety, ADHD and ASD. The member has suffered from signs and symptoms of these disorders since childhood. Whilst the documentation suggests the social phobia has only been present since 2018, this is likely to be due to his underlying conditions as listed above. In Dr Katz letter dated 24/07/18 he stated the member had suffered from symptoms of anxiety and depression since his teens. I would therefore consider that the current disablement is related to a medical condition the signs or symptoms of which existed prior to the effective date of insurance of 26 October 2017.

Autism and Asperger' s have now been reclassified as both part of Autism Spectrum Disorder (ASD), a developmental disorder present since childhood. ADHD is also a developmental disorder present since childhood. Depression and anxiety, including social anxiety/ phobia are psychological symptoms/conditions commonly occurring with the above developmental disorders. As mentioned above, I would consider that the social phobia is a type of anxiety the development of which has likely been contributed to by the underlying developmental disorders.

I would not consider that social phobia on its own is likely to cause the member to be permanently unable to return to work within their education, training or experience as a labourer or pizza delivery driver. Social phobia is a treatable condition with established psychological therapies. It is likely that the underlying ADHD and ASD have contributed to the development of the social phobia and are complicating its treatment. I would consider that the social phobia in conjunction with the ADHD and ASD are likely causing the incapacity for work."

• [144] The main challenge by the plaintiff to Dr Siddle's evidence was in relation to her report being a desktop review. However, I note that the critical propositions - that the diagnosed social phobia was likely to be due to the plaintiff's underlying conditions, and that it was likely that the plaintiff's disablement is related to a medical condition, the signs or symptoms of which existed prior to 26 October 2017 - were not specifically challenged.
• [145] The evidence supports that the plaintiff had numerous pre-existing signs and symptoms of the condition he now claims makes him totally and permanently disabled, or of a condition related to it. They were sufficiently serious that they resulted in the plaintiff:

(a) seeking treatment from a psychologist;

(b) seeking treatment from his GP; and

(c) being prescribed and taking medication, and being diagnosed with, "anxiety/depression."

• [146] In my view, taking into account the relevant terms of the insurance policy and all of the relevant evidence, the plaintiff cannot satisfy the second step of the test in respect of social phobia or any similar mental health illness that he relies upon. I am not satisfied, on the evidence before the court, that the plaintiff is entitled to the TPD benefit pursuant to the policy.

• [147] It is noted that, in the plaintiff's TPD claim form, he made no mention of any C6/C7 spinal injury as preventing him from working and was unable to provide a good explanation for such an important omission in cross-examination.
• [148] The plaintiff did not call a medically qualified witness to testify that any C6/C7 spine injury prevented him from working.
• [149] There are two CT scans, one in February 2019 and a later scan in December 2020.
• [150] As to the earlier scan, the plaintiff told Dr Wong that the C6/C7 bulge shown in the CT scan of February 2019 was asymptomatic.
• [151] I note that, after he left Riviera, the plaintiff was going to the gym and doing "bench presses". In September 2020, the plaintiff visited Dr Wong twice in relation to an injury from the bench press and he agreed in cross examination that he didn't have any symptoms associated with his C6/C7 spine at this time.
• [152] I note that Dr Wong, in a letter dated 16 December 2021, made reference to the C6/C7. However, in later 'TPD claim Draft response' to the plaintiff's then solicitors, Dr Wong stated:

"You request that I amend my answer to take into account a back injury that occurred during his employment as a boat labourer and detail whether the back injury contributed to further decline in Riley's mental health. I do not recall Riley mentioning this back problem. I have never treated him nor documented this this [sic] back problem as a presenting complaint. This is the first time I have seen the CT report you have provided. I cannot reasonably comment on this."

• [153] I note that Dr Wong's letters dated 29 October 2024 and 29 April 2021 also make no mention of any C6/C7 injury.
• [154] In relation to the earlier scan in February 2019, Dr Goode characterised the "small right parasagittal disc bulge" as insignificant and incidental:

"Cervical spinal disc bulges are quite frequently reported on CT and MRI imaging and these types of disc bulges mostly simply reflect minor constitutional degeneration, and very frequently are simply incidental and clinically insignificant."

• [155] As to the latter scan report on 10 December 2024, Dr Goode's evidence is that it did not change his opinion, because (like the February 2019 scan) it was inadequate to demonstrate anything clinically relevant.
• [156] Even if it were assumed that the T2-3 or T3-4 observations had some clinical significance, the report does not prove those things prevented the plaintiff from working before his insurance coverage ended.
• [157] As to when he had signs and symptoms of a C6/C7 injury, the evidence is confusing.
• [158] The plaintiff's own evidence is that he had signs and symptoms of this existing when he worked at Riviera (that is, before 13 September 2017):

"And when do you say that back symptom manifested first?‑‑‑It started at Riviera.

Right?‑‑‑I am telling the truth. I even swore on the Bible. I'm telling the truth. It started at Riviera. I went to stretch. My supervisor said, "Stop effing around and get back to work." And I'd said, "I'm just stretching my back." All I did was go like that to crack the vertebrae. It explains all this. I don't know why that doctor was crap, why he didn't write "stress".

So that's neck pain starting in January 2019?‑‑‑Well, it started at Riviera with the back. And then, ah, I went to see him - yeah, 2019. Was it - yeah, it was 2019. And then he said it's musculoskeletal neurological."

• [159] However, on 30 January 2025, Dr Gupta writes a letter to Dr Sadasivan, stating that the plaintiff has "been complaining of upper back pain since last 5 years". This would only backdate that pain to 2020, after which time the plaintiff had concluded working at Riviera.
• [160] In all the circumstances, I am not satisfied that the plaintiff was TPD by reason of a C6/C7 spine injury.

• [161] I have considered all of the relevant evidence in relation to whether the plaintiff is entitled to a TPD benefit pursuant to the policy. I am not so satisfied.
• [162] Accordingly, the medical evidence supports that:

(a) the plaintiff's mental illnesses were pre-existing, and

(b) that any back injury he suffered in 2017 was not such as to render him totally and permanently disabled.

• [163] Further, I note that the plaintiff has, in material outside of his statement of claim, referred to claims on other bases, including claims for pain and suffering and claims in relation to injuries he suffered consequent upon being assaulted by a third party in April 2022. These issues raised by the plaintiff are in the nature of personal injury claims and are outside the statement of claim.
• [164] I will give the parties an opportunity to consider these reasons before they are required to file and serve short written submissions on the question of costs. Within 14 days, the parties are to agree on a timetable for the exchange of written submissions (which are to be no more than 10 pages in length) and provide this timetable to the Court.
• [165] If it is appropriate, I will then deal with the question of costs on the papers, unless either party requests a hearing.
• [166] To facilitate this process, I will adjourn the question of costs to a date to be fixed.

• [167] The claim is dismissed.
• [168] The question of costs be adjourned to a date to be fixed.

[1] The plaintiff clarifies in his statement of claim that he particularly wants his 'lifetime outlook payment of $200,000 which was in [his] policy, the old policy before they merged with sunsuper'.

[3] By reason, for example, of the principles in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107.

[4] Tal Life Ltd v Shuetrim [2016] NSWCA 68; (2016) 91 NSWLR 439.

[5] I note that the certificate does not refer to what the plaintiff's occupation is.

[6] Likely referring to the plaintiff's then solicitor Nari Ali of WKB TPD Lawyers.

[7] A medical certificate from Dr A Razack dated 22 August 2017; An email to Rivmar from Mr Byrnes- Reeves dated 13 September 2017; An Employment Separation Certificate from Rivmar Pty Ltd dated 23 September 2017; A referral letter from Dr A Razack dated 18 October 2017; An Employment Separation Certificate from TouchPoint HCM Solutions Pty Ltd dated 4 June 2018; A medical report from Dr M Katz dated 24 July 2018; A referral letter from Dr J Cliffe dated 10 September 2018; A confidential medical report from Dr G Patrick dated 20 October 2018; A referral letter from Dr G Patrick dated 24 October 2018; A CT of the plaintiff's Cervical and Thoracic Spine from Dr M Ryan dated 18 February 2019; A medical form from Dr M Bersin dated 13 June 2019; A GP Mental Health Treatment Plan from Dr T Islam dated 25 June 2019; A referral letter from Dr J Wong dated 20 February 2020; A Total and Permanent Disability (TPD) Benefit Claim (Part C) - Doctor's Statement from Dr J Wong (undated); A Total and Permanent Disability (TPD) Benefit Claim (Part A) - Member's Statement from Mr R Byrnes-Reeves dated 20 May 2020; A medical report from Dr J Mahapatra dated 1 March 2021; A medical report from Dr J Wong dated 29 April 2021; A medical opinion from Dr H Siddle dated 7 May 2021; A medical report from Dr J Wong dated 16 December 2021; The Statement of Reasons from QInsure dated 23 June 2021; The Internal Dispute Statement of Reasons from QInsure dated 23 September 2021; The Internal Dispute Statement of Reasons from QInsure dated 14 October 2021; The medical opinion of Dr H Siddle dated 12 August 2022; The medical opinion of Dr S Goode dated 12 August 2022; A response to procedural fairness including attachments previously provided to QInsure dated 31 August 2022.

[8] See MetLife Insurance Ltd v Hellessey [2018] NSWCA 307, at [7]-[8] and [61].

[9] Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233, at [127].

[10] See, eg, MetLife Insurance Ltd v Hellessey [2018] NSWCA 307, at [13]. See also MetLife Insurance Ltd v MX [2019] NSWCA 228, at [97].

[11] Including setting out the details of the matters stated in the plaintiff's complaints and submissions after the original decision.

[12] See Superannuation (State Public Sector) Deed 1990 (Qld) s 69(1).

[13] See cl 9.12 and the definition of 'Member' in the insurance policy.