Folan v United Super Pty Ltd

Supreme Court of NSW|2014-02-19|Before: Nicholas AJ

Judgment 1The plaintiff sues the first defendant (the Trustee) as trustee of a superannuation fund known as the Cbus Industry Superannuation Fund (the Fund), and the second defendant (the Insurer) as insurer of the Fund under a policy of group life insurance (the Policy), claiming an entitlement to benefits for total and permanent disablement (the TPD benefit). 2The plaintiff had been employed in the building and construction industry, principally as a labourer. On 6 March 2009 he was involved in a motor vehicle accident in which he suffered injuries, including significant injury to his left elbow. By reason of these injuries the plaintiff has not returned to work since the accident. Since about 4 December 2009 he has claimed against the Trustee for TPD benefits under the Trust Deed. The Trustee and the Insurer have declined his claim on each occasion. It is common ground that the amount of the benefit in issue is $100,000.

Introduction 3An agreed statement of facts and matters was provided by the parties to the court from which the following account (paras 4-36) is taken. 4The plaintiff alleges against the Trustee certain breaches of trust under the Trust Deed governing the Fund, particulars of which are set out in paragraph 21 to 29 of the further amended statement of claim. As against the Insurer, the plaintiff alleges breaches of statutory and general law duties, particulars of which are set out in paragraphs 31 to 33 of the further amended statement of claim.

Trust Deed & policy 5The Trust Deed governing the Fund relevantly provides in clauses 5.12 and 7.2: 5.12 Total and Permanent Disablement Subject to this Deed, the Benefit payable to a Member who ceased to be Gainfully Employed prior to attaining age 65 having suffered Total and Permanent Disablement shall be the sum of: ... (b) the amount of any Insured Benefit, if any, provided in respect of the Member. 7.2 Definitions In the Deed, unless the contrary intention appears: ... "Total and Permanent Disablement" means disablement of a Member resulting from an illness, accident or injury to the Member which commenced or occurred whilst a Member and as a result of which: (a) the Member has been precluded for a period of six consecutive months after the date of occurrence of suchevent from following any occupation for which the Member is reasonably suited by education training or experience; and (b) the Member will, in the opinion of the Trustee after consideration of medical evidence satisfactory to it, continue to be so disabled to such an extent as to render the Member unlikely ever again to resume work in or attend to any such occupation; and "Totally and Permanently Disabled" shall have a corresponding meaning but where at any time, all or part of the Benefit payable in the event of Total and Permanent Disablement is an Insured Benefit, the term "Total and Permanent Disablement" shall bear the meaning ascribed to it in the relevant Policy in lieu of the above definition; 6Here, Total and Permanent Disablement benefits are an Insured Benefit. Consequently, by operation of the definition set out above, the relevant definition of TPD is that set out in the Policy. 7Under Group Life Contract No. VGL 4163, between the Insurer as insurer and the Trustee as Proposer, the policy relevantly provides in clause 1.2 and 1.3, and in the Glossary: 1.2 If the cover is in force under this policy when an Insured Person: ... 1.2.2 suffers Total and Permanent Disablement, we must pay the Agreed Benefits. 1.3 Total and Permanent Disablement in respect of an Insured Person who was gainfully employed within the six months prior to the Date of Disablement is where: 1.3.1 the Insured Person is unable to follow their usual occupation by reason of accident or illness for six consecutive months and in our opinion, after consideration of medical evidence satisfactory to us, is unlikely ever to be able to engage in any Regular Remuneration Work for which the Insured Person is reasonably fitted by education, training or experience; or ... Date of Disablement Total and Permanent Disablement is treated as having occurred on the Date of Disablement which is the earlier of: (a) the date on which the six (6) months consecutive inability to work that results in Total and Permanent Disablement began; or ... Regular Remuneration Work an Insured Person is engaged in regular remunerative work if they are doing work in any employment, business, or occupation. They must be doing it for reward - or the hope of reward - of any type.

Background 8The plaintiff was born on 11 December 1965. He attended high school and obtained his Year 10 Certificate, or the equivalent thereof, in about 1982. He then commenced a TAFE course in Mechanical Fitting, which he completed in 1985, and obtained a Certificate of Mechanical Fitting. 9The plaintiff worked in the building and construction industry, principally as a labourer. Over time he obtained the following additional qualifications or licences: Crane Driver's Licence; Dog Man Licence; Hoist Licence; Skid Steer Licence; and, Heavy Rigid Licence. The plaintiff has no education, training or experience relating to office work. 10For a period prior to 2009, the plaintiff was employed by a number of companies, including Linddales Pty Ltd, with whom the plaintiff worked as a labourer. He also undertook casual work with a number of other employers. The plaintiff last worked with Linddales Pty Ltd on 20 February 2009, the employer then having no work available for him. 11On 6 March 2009, the plaintiff was involved in a motor vehicle accident in which his vehicle was hit from behind by a truck. In the accident the plaintiff suffered certain injuries, including an injury to his left elbow. The plaintiff was right-hand dominant. 12For the six-month period following the accident, the plaintiff remained unemployed by reason of the injuries incurred in the accident. Furthermore, the plaintiff has, in fact, never returned to work. 13The plaintiff was not hospitalised immediately after the accident. On either the same day as the accident or the next the plaintiff came under the care of the general practitioner, Dr Phoon. The plaintiff was treated conservatively with a sling and anti-inflammatory tablets. The pain in his elbow did not settle, and eventually he was referred to Dr Burrow, an orthopaedic surgeon. 14On 15 February 2010, Dr Burrow performed arthroscopic surgery on the plaintiff's left elbow. Post-operatively, the plaintiff remained under the care of Dr Burrow and was reviewed periodically by the doctor up until at least September 2010. 15The CTP insurer of the other vehicle involved in the accident was Allianz Insurance Australia (Allianz). The plaintiff made a claim on this CTP insurance, and eventually Allianz accepted breach of duty of care. In the course of dealing with this claim, amongst other things, Allianz referred the plaintiff to Commonwealth Rehabilitation Service Australia (CRS) to assist the plaintiff in his rehabilitation. 16After his operation, the plaintiff undertook a course of physiotherapy commencing on 23 February 2010. This was undertaken at the physiotherapy clinic at the Mater Hospital in Sydney. The physiotherapist was Ms Nelson. After completing that course of physiotherapy, the plaintiff returned for further treatment on one occasion on 13 May 2010. While an examination occurred on that occasion, no actual treatment was undertaken. Dr Burrow advised the plaintiff that further physiotherapy treatment would not be beneficial in June 2010. 17 On 5 November 2009 an Occupational Therapist at CRS, Ms Jo Stamp, interviewed and assessed the plaintiff for the purposes of an initial rehabilitation plan. On 10 December 2009, Ms Stamp recorded that CRS was not able to establish the plaintiff's capacity for work prior to his surgery. She repeated this observation on 1 February 2010, and stated that following surgery and associated physiotherapy the vocational assessment will be conducted based on the plaintiff's capacity. In a report incorrectly dated 10 December 2009, but believed by the parties to have been prepared in March 2010, Ms Stamp noted that Dr Burrow had advised that the plaintiff would be permanently unfit for heavy lifting, and that as the plaintiff worked primarily in labouring type work prior to the accident he would require assistance to identify suitable vocational options. Ms Stamp stated that CRS is therefore transferring the plaintiff's file to Ms Lauren Palmisano, Rehabilitation Counsellor, to assist in the identification of suitable vocational options through rehabilitation counselling. 18On and following April 2010, the plaintiff's dealings with CRS were with Ms Palmisano. There is no evidence that the plaintiff was assessed by an Occupational Therapist or Occupational Physician after his operation. 19On 17 May 2010, Ms Palmisano held a case conference with the plaintiff and Dr Phoon. On 7 June 2010, Ms Palmisano held a case conference with the plaintiff and Dr Burrow. The various CRS employees prepared a number of reports which were provided to Allianz, and in turn to the plaintiff.

History of claim for TPD benefit 20At all material times the plaintiff was a member of the Fund. 21On about 4 December 2009, the plaintiff lodged a claim for the TPD benefit with the Trustee. In turn, the Trustee lodged a claim under the Policy with the Insurer in respect of the plaintiff's claim for the TPD benefit. 22Accompanying the plaintiff's claim was a Medical Attendant's Statement of Dr Phoon dated 12 December 2009. 23The Insurer proceeded to investigate the plaintiff's claim. It obtained a Confidential Medical Report from Dr Phoon dated 21 December 2009, and, pursuant to an authority provided by the plaintiff, the Insurer obtained a number of documents from Allianz. Principally the documents from Allianz comprised copies of medical reports from Dr Burrow to Dr Phoon, and copies of reports from CRS. Also, the Insurer made requests of the Trustee for it to obtain reports from Dr Burrow. Accordingly, the Trustee obtained reports of Dr Burrow dated 7 June 2010 and 7 May 2011, copies of which were provided to the Insurer. 24On 1 July 2011, the Insurer sent a letter to the Trustee identifying, and enclosing, documentation that the Insurer said it had obtained. The Insurer requested that the Trustee provide that documentation to the plaintiff for his review in the interests of procedural fairness. 25By letter dated 4 July 2011 from the Trustee to the plaintiff, the Trustee identified, and enclosed, the documents that it understood that the Insurer had obtained and upon which the Insurer would make its decision, and invited the plaintiff to send any further evidence that he wished to submit to the Insurer by 2 August 2011. 26That letter from the Trustee to the plaintiff did not refer to or attach a series of job advertisements that the Insurer had obtained, seemingly from an Internet search. The advertisements had not been provided by the Insurer to the Trustee, and the Trustee was unaware of them. 27By letter dated 11 August 2011 to the Trustee, the Insurer advised the Trustee that the Insurer had formed the opinion that the plaintiff was not totally and partly disabled within the policy definition. 28On 8 September 2011, on behalf of the Trustee a document in relation to the plaintiff's claim was prepared which included a summary of the documents and medical reports said to be available to the Trustee, and contained a section under the heading "Opinion" in which some analysis of the materials was articulated, concluding with the opinion that the claim should be rejected. 29On 12 September 2011, the Trustee formed the view that the plaintiff did not fit the definition of TPD. By letter dated 22 September 2011, the Trustee advised the plaintiff that his claim had been denied by the Insurer, and that the Trustee, after consideration of the evidence obtained, had resolved that the plaintiff did not meet the definition of TPD. 30Solicitors acting for the plaintiff, being solicitors who had acted also for the plaintiff in respect of his CTP claim, wrote to the Trustee on 31 October 2011 requesting information and copies of documents relating to the rejection of the plaintiff's claim. Through a subsequent exchange of correspondence, the plaintiff's solicitors were provided with certain information and documentation. The documentation provided by the Trustee included all medical reports that had been obtained. It also included a copy of the Insurer's original rejection letter, but not a copy of the advertisements (of which the plaintiff and the Trustee were unaware). 31The plaintiff's solicitors, by letter dated 1 August 2012 to the Trustee, sought a reconsideration of the rejection of the plaintiff's TPD claim. The letter enclosed a number of documents. Enclosed was a copy of a statement of the plaintiff dated 19 July 2012. Also enclosed were a number of medical reports and reports of CRS, some of which were documents that had been available to the defendants at the time of their original determinations. 32By letter dated 24 August 2012 to the Trustee, the Insurer advised the Trustee that after a review of the plaintiff's claim in conjunction with the additional supplied material the Insurer maintained its decision to decline the plaintiff's claim. The Insurer requested that a copy of its letter be provided to the plaintiff or his representative to assist them to understand the decision. 33On 13 September 2012, on behalf of the Trustee a further summary and assessment document was compiled in relation to the plaintiff's claim. On 17 September 2012 the Trustee again determined that it believed that the plaintiff did not fit the definition of TPD. By letter dated 21 September 2012, the Trustee advised the plaintiff's solicitors that the plaintiff's claim had been denied by the Insurer, and that the Trustee, after consideration of the additional supplied material and its first decision, had resolved that the plaintiff did not meet the definition of TPD. This letter enclosed a copy of the Insurer's first review letter. 34The plaintiff's solicitors sought a further review of the decision by letter dated 18 March 2013 to the Trustee. Under cover of this letter, the solicitors enclosed a further quantity of material. The only substantive new material comprised: a report of the physiotherapist, Ms Nelson, dated 19 May 2010; and two reports of Dr Patrick dated 25 July 2012 and 2 August 2012 respectively. 35By letter dated 12 April 2013 to the Trustee, the Insurer advised the Trustee that after a review of the plaintiff's claim in conjunction with the additional supplied material the Insurer maintained its decision to decline the plaintiff's claim. The Insurer recommended that the summary contained in their letter be read in conjunction with their previous communications in respect of the matter, and again requested that a copy of its letter be provided to the plaintiff or his representative to assist them to understand the decision. 36A further summary and assessment document relating to the plaintiff's claim by the Trustee was made on 7 May 2013. On 27 May 2013 the Trustee resolved that the decision to deny the plaintiff's claim remained unchanged. By letters 27 of May 2013, 28 May 2013 and 6 June 2013, the Trustee advised the plaintiff's solicitors that the plaintiff's claim had been denied by the Insurer, and that the Trustee, after consideration of the all of the material including the further additional supplied material, had resolved that its decision to deny the plaintiff's claim remained unchanged. This letter enclosed a copy of the Insurer's second review letter.

The issues 37In short, the plaintiff alleges that the decisions of the Trustee and the Insurer were unreasonable, and invalid in that each had failed in its duty to undertake a reasonable and genuine consideration of the material before it including in particular, a failure to make reasonable inquiries for information as to the plaintiff's fitness for work, and as to the availability of such work for which the plaintiff was said to be fit. 38The meaning of TPD in clause 1.3.1 of the Policy was incorporated in the Trust Deed under clause 7.2 thereof. Thus the question for both the Insurer and the Trustee was the same. 39It was common ground that the plaintiff was within the first limb of the definition in that he had been unable to follow his usual occupation by reason of the injury suffered in the motor vehicle accident on 6 March 2009 for six consecutive months. Accordingly, the crucial question for determination was whether the plaintiff was at the relevant time "...unlikely ever to be able to engage in any Regular Remuneration Work for which the Insured Person is reasonably fitted by education, training or experience;". 40It was accepted that the relevant assessment date was 6 September 2009. It was also accepted that in the event the decisions of declinature were vitiated, the Court should proceed to determine the claim.

The injury 41On 27 July 2009 Dr Greggory Burrow, orthopaedic surgeon, reported on his examination of the plaintiff to the treating doctor, Dr K Phoon. He said that the plaintiff had suffered a radial head fracture of the left elbow, had aggravated pre-existent arthritis, with a loss of range of motion. He considered the plaintiff remained unfit for labouring type work. 42On 26 October 2009, CRS recommended to Allianz that rehabilitation be investigated as the plaintiff's disability and loss of physical capacity continued to prevent him from securing pre-injury employment. 43On 10 November 2009 Dr Burrow reported to Dr Phoon on his examination of the plaintiff. He confirmed a full and chronic rupture of the biceps, and arthritis of the elbow, with a healed hemispheric radial head fracture. There was aggravation of elbow arthritis for which an arthroscopy procedure was proposed to help relieve overall pain, range discomfort and range of motion. He said he would be fit for office duties post-operatively, but permanently unfit for heavy lifting work. 44On 10 December 2009 CRS reported it was unable to establish the plaintiff's capacity for work, and suitable vocational goals, pending the proposed surgery. 45On 12 December 2009 Dr Phoon reported that the plaintiff was unable to use his left arm and straighten the left elbow, and that his condition had stabilised. As to work capacity, he said the plaintiff was not able to perform his regular occupation as a builder's labourer, and was not able to perform any other occupation compatible with his condition. 46On 21 December 2009, Dr Phoon reported to the Insurer that the plaintiff was currently unable to do his normal job, and would not be able to do heavy lifting with his left elbow. 47On 1 February 2010, CRS reported that the plaintiff's capacity for work remained unknown, being dependant on the success of surgery in February 2010, following which a vocational assessment would be conducted. 48On 15 February 2010 Dr Burrow reported to Dr Phoon on the arthroscopy and related procedures. On 26 February 2010 he advised Dr Phoon that the plaintiff was "...fit for office or light duties if they are available with a 2kgs lifting restriction and no repetitive work." 49On 10 March 2010 CRS reported that the plaintiff required assistance to identify suitable vocational options. The file was transferred to Ms Palmisano, a rehabilitation counsellor. 50On 30 March 2010 CRS reported on a case conference when vocational options as a traffic controller, and crane operator, were discussed. Dr Phoon provided the plaintiff with a medical certificate that he was unfit to work until 31 April 2010. He indicated that in the future he may be fit for gardening type work, and said no further treatment was recommended. The plaintiff indicated he would not pursue a role as a traffic controller as it was below his intelligence. A clear vocational goal was yet to be established. 51On 12 April 2010 Dr Burrow reported to Dr Phoon on the plaintiff's improvement in range of motion, but continued to suffer from a continued ache from permanent cartilage damage. He said that the plaintiff "...remains fit for office or light duties if they are available with a 2 kgs lifting restriction and avoiding repetitive work". He doubted that the plaintiff would be able to return to heavy work as a construction worker. 52On 24 April 2010 CRS reported it was waiting for advice from Dr Phoon and Dr Burrow whether the plaintiff would be fit to obtain work as a crane operator, crane chaser, traffic controller (although not agreed by the plaintiff), and school-crossing supervisor (although not agreed by the plaintiff). It proposed a plan of 3 months duration to establish the plaintiff's capacity for work and to determine vocational goals, which included liaising with the medical practitioners and physiotherapist as to suitability of vocational options. 53On 26 April 2010 Dr Burrow advised CRS that the plaintiff was functionally suitable for work as a traffic controller or school-crossing supervisor. He said he was fit for office or light duties with a 2kg lift restriction on left elbow, and that manipulating a traffic stop/go sign with right arm and left arm was acceptable. 54On 18 May 2010 CRS reported that the plaintiff did not understand why he was required to job seek "due to his significant discomfit (sic) and current strong pain relief medication". It noted that on 17 May 2010 Dr Phoon considered the plaintiff was currently unfit and was not required to undergo physiotherapy treatment if he did not want to. The report noted the plaintiff had attended a total of 17 physiotherapy sessions between February and May 2010, and had cancelled some because of flu. It advised that CRS had not yet commenced job-seeking advice or assistance due to the plaintiff's non-attendance, and that the plaintiff had indicated that his elbow was not improving. 55On 19 May 2010, Ms Nelson, physiotherapist, reported to Allianz on the plaintiff's treatment. His irregular attendances were said to be due to a viral illness; he had received 16 treatments since 23 February 2010 when referred by Dr Burrow. He returned for further treatment on 12 May 2010 when he complained of continuing pain in his elbow. Ms Nelson was surprised at his high level of medication. She said: "...I ... was not prepared to proceed with the treatment immediately as I felt there needed to be a little more communication and coordination between those involved in the case. Realistic goals of treatment need to be established with Barry, pain issues need to be dealt with, as do his expectations of his recovery with regard to function and pain and how that may impact on future work." 56On 7 June 2010 Dr Burrow reported to the Insurer that the plaintiff had some improvement in his pain profile and range of motion with left elbow, but continued to experience significant symptoms of stiffness and discomfort due to permanent cartilage damage. His prognosis was that the plaintiff would be permanently unfit to return to work as a heavy working labourer. He said: "Furthermore he should avoid repetitive use of the arm, say on a process line. He is fit for office or light duties work but given his occupational and educational skills it may prove very difficult to find meaningful employment. I have discussed this with his rehab provider. An opinion from an occupational physician may be more helpful in clarifying his ongoing workability, but I believe the prognosis in this regard is poor. ... I think it would be very unlikely given the above comments that Mr Folan will find work that meets his particular skills set and permanent physical restrictions." 57On 7 June 2010 Dr Burrow reported to Dr Phoon that there may be some improvement in pain, but unlikely improvement in range of motion. In his opinion the plaintiff was unfit for heavy labouring duties which he had performed previously, and should be placed on permanent restricted duties with a 5kg lifting restriction, avoiding repetitive type work, as on a process line. He said that finding suitable employment for the plaintiff may be difficult with his occupational skills. 58On 8 June 2010, CRS reported on a specialist case conference attended by the plaintiff and Dr Burrow on 7 June 2010. Dr Burrow then advised that further physiotherapy would not be beneficial; that it was likely the plaintiff had reached the maximum level of improvement; and further treatment was not recommended. Dr Burrow advised that the plaintiff's capacity to work was subject to restriction against lifting loads in excess of 2-5kgs, and repetitive tasks. He agreed that the plaintiff would be fit to commence as a traffic controller, but indicated he would not be concerned if he did not return to work. A later meeting was arranged to identify vocational options. 59On 30 July 2010 CRS provided a case closure summary to Allianz which noted the plaintiff required no further medical treatment, had not been certified fit for work to date, and vocational options approved by Dr Burrow had not been agreed by the plaintiff. It referred to the plaintiff's failure to attend physiotherapy sessions twice per week consecutively. It indicated that the plaintiff preferred to postpone utilising CRS services regarding rehabilitation and return to work prior to settlement of his motor vehicle accident claim. At the request of Allianz the CRS rehabilitation service was closed on 30 July 2010. 60On 13 September 2010 Dr Burrow reported to Dr Phoon that the plaintiff continued to suffer from arthritic pain in the elbow because of permanent cartilage wear in the joint. He said the plaintiff remained permanently unfit for heavy lifting but was fit for office or light duties that did not involve a lot of heavy lifting of the elbow or repetitive movements on a process line. 61Dr Burrow's report to the Insurer of 7 May 2011 included the following: "I am not an occupational physician or therapist and the duties of a dogman, crane hoist driver, skid loader are unknown to me, but I would imagine that they would be heavier than light duties and probably repetitive. I doubt that they would meet the restrictions that I have described. You have asked me if he is fit to take up employment within equipment hire, if he was in the office or doing light duties outside with no heavy lifting. This would be appropriate. An opinion from an occupation therapist or physician regarding these specific duties would be appropriate. ... He is fit for immediate full time office or light duties with the restrictions described." 62On 25 July 2012 Dr W G D Patrick, general surgeon, reported to the plaintiff's solicitors on his examination of the plaintiff that day. The present symptoms included ongoing troublesome pain and stiffness of the left elbow, ongoing neck pain and stiffness, difficulty using left arm outstretched or overhead, continuing medication for pain relief, and that the left arm overall was a hindrance rather than a help. Dr Patrick believed the plaintiff's complaints of continuing symptoms were genuine, and consistent with, and significantly resulting from, the effect of the injuries sustained in the motor vehicle accident. He said the prognosis for a return to work was not good. His opinion was that the plaintiff's present employment options were very limited, and that he was clearly unsuited for office-type work, or any work which required significant focus/concentration. 63In his report of 2 August 2012 to the plaintiff's solicitors, Dr Patrick assessed the plaintiff to have 17% Whole Person Impairment, of which 9% was attributable to the left elbow. 64On 19 July 2012 the plaintiff provided a statement to his solicitors. It included: "4. Ever since my accident, I have essentially been on Centrelink benefits and most of the time the Disability Support Pension and this continues to date. ... 7. I continue to have severe restriction in the use of my left arm. I have been left with a permanent disability that precludes me from straightening my left arm, from bending the elbow to the full extent because of pain and restriction within the elbow as a result of the bone taken out of my elbow. I am also left with permanent restrictions in relation to my grip strength and have been advised not to attempt to lift anything more than approximately 2kgs. ... 12. I refer to Hannover's decision to decline my claim dated 11 August 1011 (sic). In relation to their summary of Dr. Burrow's report, I do not agree that there has been any significant improvement in my pain profile or range of motion in relation to my left elbow. In fact, I would say that it has gotten worse of the last two years, because I am unable to use my left arm and elbow and as such I am losing the ability to flex or extend and use my left arm effectively... 13.in relation to performing the duties of a traffic controller, I am not licensed to work as a traffic controller and therefore I am unemployable. Even if I had the licence to work as a traffic controller I do not believe I would be able to do so because I know that I would need to use both arms to carry the pole and also any barricades and other equipment necessary to perform the duties of a traffic controller. Although I have never worked, nor been licensed to work as a traffic controller, I have seen people employed in these positions performing duties on the work sites and there is quite a lot of set-up involved to erect barriers to restrict the flow of traffic and to regulate it and to control movement of vehicles. 14. If I perform any repetitive movements or minimum use of my left arm for more than a couple of minutes it increases the pain in my elbow dramatically and makes it almost unbearable. This causes me to want to lay down and rest because this is the only thing that seems to help reduce the plain. When my pain becomes unbearable, I have difficulty concentrating and it brings on headaches. These headaches alone make it very difficult for me to concentrate, problem solve and it affects my short-term memory. 15. There is no way I can foresee myself being able to perform any regular paid employment because when I perform just minimal repetitive duties it increases my pain significantly and brings on headaches. I would need to be able to life down and rest whenever this occurs, which is any time that I have to perform minimal repetitive movements with my left arm for more than a few minutes. 16. I have never worked as a school-crossing supervisor and I am assuming it would require the same certificate as a traffic controller, nor would I be able to carry the pole and operate it repetitively. Further, I doubt that this would be regular employment because it would only be for one hour in the morning and one hour in the afternoon. ... 18. I have no office or clerical skills whatsoever and neither do I have computer skills. In fact, I do not even have a computer at home or know how to use one. ... 20. I also disagree that I did not comply with my treating doctor and physiotherapist requests to undergo physiotherapy twice per week, and in fact I did so. ... 22. I would also have no idea how to operate any computers required for the inventorying, hiring and invoicing of the goods. I have never used any of this equipment and never worked in a customer service role. I do not believe I have the people skills to work with customers and my pain levels would be so severe that I would need to lie down if I performed even one task mentioned above. 23. ... I am unable to perform any of the duties I have performed previously because of the physical duties required and the significant pain that I suffer daily. ... 30. Consequently, I cannot envisage a job that I can perform regularly be it casual, part-time or full-time based on my education, training and experience because all of my work duties required heavy physical duties. I have no office, clerical, customer service skills and would not be able to perform these duties even after on-the-job retraining because I do not believe I have the intellectual capacity to do so. Furthermore, any customer service roles I have seen people perform requires repetitive use of both arms, such as stocking shelves, moving products, equipment and assisting customers in either delivering goods to them, or placing them in their vehicle, or assisting them placing them in the vehicle for them. The pain after just a few minutes of repetitive activities increases dramatically and brings on headaches. I doubt that I would be able to work for more than one hour at a time even with very minimal repetitive duties because of increased pain resulting headaches causing me to cease and need to lie down and rest. 31. I essentially need to lie down and rest daily because even performing light domestic duties such as sweeping, mopping and doing the dishes causes me increased pain resulting in me needing to lie down and rest after a short period of time. To believe that I could perform a regular occupation day in and day out is unrealistic and unreasonable for these reasons. Furthermore, there are some days that I consider are "bad" days where my pain and restrictions are more than usual and it is all I can do to be able to prepare a simple meal for myself let alone performing any housework or any other domestic duties. On these days I am essentially unable to perform anything besides simple hygiene and meal requirements."

The principles 65The second limb of the definition of TPD requires the plaintiff to prove that he was unlikely ever to be able to engage in any Regular Remuneration Work for which he was reasonably fitted by education, training, or experience. In Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57 para 46, per Bathurst CJ, it was held that the term "Regular Remuneration Work" as defined: "provides that a person is engaged in regular remunerative work if they are doing work in any employment, business or occupation. There is no limitation on the work being full-time or part-time. The limitations are that the work must be remunerative, that is done for reward or hope of reward and must be regular. The word regular means something occurring at fixed times or uniform intervals (see the definitions in the Shorter Oxford English Dictionary and the Macquarie Dictionary). Thus, it would not in the present context include casual work or other work of an intermittent nature. However, the word regular would not on a literal construction exclude part-time work." 66The Trustee and the Insurer were required to determine the question whether the plaintiff suffered from TPD at the time and by reference to the facts that existed at the time he first suffered from TPD in accordance with the policy. The time for assessment is upon the expiration of the six month qualifying period which, in this case, was 6 September 2009 (Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115 para 55 per Ball J; Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 para 33 per Brereton J). 67In Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 para 64 I said: "The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the insured would actually obtain work for reward (i.e. paid employment) for which he is qualified by education, training or experience, and whether his condition has disabled him from doing what he is qualified to do. The court is expected to take a realistic and common sense approach in its assessment. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory. (Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945, per Bryson, J para 54; Ivkovic p 351; Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55, paras 64, 65, 68.)" 68In my opinion, the phrase "...is unlikely ever to be able to" in the TPD definition focuses on the question whether it is improbable that the insured will ever become engaged in regular paid work. It requires an insurer to take into account, not just the theory that a person is physically fit to do particular work, but also the actual likelihood of that person obtaining regular employment for reward other than casual work or other work of an intermittent nature. Inherent is the issue whether the work, for which the insured is reasonably fitted by education, training, or experience is, in the real world, work which as a matter of probability is available to him (Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55 paras 64, 65, 68 per Brownie J). 69In Lazarevic v United Super Pty Ltd [2014] NSWSC 96, Hallen J said: "108. 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. 109. 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.'" 70The duties of the Trustee and the Insurer were stated in Erzurumlu by Ball J as follows: "53. The Trustee has a duty to apply the trust assets in accordance with the Trust Deed. In performing that duty, it is required to inform itself properly of the relevant facts: Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 at [30]ff. It is also 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: see Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [32]ff per Santow JA (with whom Spigelman CJ and Tobias JA agreed). If, for any reason, the Trustee has failed to discharge its duties in considering the member's claim, the appropriate order is to refer the matter back to the Trustee. The court generally does not itself seek to execute the trust: Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [33]. 54. Although a member is not a party to the contract with the insurer who provides insurance cover to the trustee of a superannuation fund, the member has standing to enforce the contract as a beneficiary of the trust which holds the insurance policy as one of its assets. The member does not have a personal claim but is entitled to seek an order that the insurer pay to the trustee the amount due to the trustee under the contract: Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 at [78]ff. An insurer, when considering a claim, must comply with its obligation of utmost good faith. That obligation requires the Insurer to act reasonably in considering the claim. The obligation to act reasonably includes an obligation to consider and to determine the correct question. It also includes an obligation to give the member an opportunity to answer any material on which the insurer intends to rely: Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [35]ff. Although the obligations of the trustee and the insurer are expressed in different terms, from a practical point of view, the grounds on which the decision of each may be challenged are similar: Sayseng (2003) at [77]. The duty of the court is to determine whether the insurer breached its duty of utmost good faith. It is not to substitute its own view for that of the insurer. However, if an insurer refuses a claim in breach of its obligation of good faith, the court itself can determine whether, on the material available to it, the claim fell within the policy: Sayseng (2005) at [36]." 71In Finch v Telstra Super Pty Ltd [2010] HCA 36 it was held: "66. ...There is no doubt that under Karger v Paul principles, particularly as they have been applied to superannuation funds, the decision of a trustee may be reviewable for want of 'properly informed consideration' [48]. If the consideration is not properly informed, it is not genuine. The duty of trustees properly to inform themselves is more intense in superannuation trusts in the form of the Deed than in trusts of the Karger v Paul type. It is extremely important to the beneficiaries of superannuation trusts that where they are entitled to benefits, those benefits be paid. Here, for example, the applicant was claiming a Total and Permanent Invalidity benefit to support himself for the rest of his life. His claim depended on the formation of an opinion by the Trustee about the likelihood that he would ever engage in 'gainful Work': that was not a mere discretionary decision. In the Deed there was a power to take into account 'information, evidence and advice the Trustee may consider relevant', and that power was coupled with a duty to do so. It would be bizarre if knowingly to exclude relevant information from consideration were not a breach of duty. And failure to seek relevant information in order to resolve conflicting bodies of material, as here, is also a breach of duty. The Scheme is a strict trust. A beneficiary is entitled as of right to a benefit provided the beneficiary satisfies any necessary condition of the benefit. Whether or not it will be decided hereafter that, consistently with s 14 of the Complaints Act, the duty of a trustee in forming an opinion of the present type is a duty to form a fair and reasonable opinion, or even a duty to form a correct opinion, there is because of the importance of the opinion and its place in the Scheme a high duty on the Trustee to make inquiries for 'information, evidence and advice' which the Trustee may consider relevant. The existence of that duty in a more intense form than exists under Karger v Paul principles in their standard application is further support for the correctness of Byrne J's decision." 72In Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238 Nettle JA (Redlich JA and Davies AJA agreeing) was of the opinion (paras 47, 48) that Finch did not limit the duty of a trustee to make inquiries to one to seek relevant information to resolve a conflict. He held that where the material before the trustee was insufficient to give properly informed consideration to an application (whether because of competing bodies of material or simply because of a dearth of material) the trustee was bound to make further inquiries. He continued: "57. As has been seen, in Finch the High Court held that the duty of a trustee properly to inform itself is 'more intense in superannuation trusts in the form of the Deed than in trusts of the Karger v Paul type'. It follows that, where a member of a superannuation trust fund claims to be entitled to a total and permanent disability benefit, and the claim depends on the formation by the trustee of an opinion by the trustee as to the likelihood of the member ever again engaging in work for which he is reasonably suited by education, training or experience, the formation of the opinion is not a 'mere discretionary decision'. The trustee is under a duty to give 'properly informed consideration' to the application and, because 'it is extremely important to the beneficiaries of superannuation trusts that where they are entitled to benefits, those benefits be paid', there is a 'high duty' on trustees to make such inquiries as they may reasonably consider relevant in order properly to determine the application. ... 60. So to say does not mean that a trustee is required to do the impossible. Nor is it to suggest that a trustee is expected to go on endlessly in pursuit of perfect information in order to make a perfect decision. The reality of finite resources and the trustee's responsibility to preserve the fund for the benefit of all beneficiaries according to the terms of the deed means that there must be a limit. Like the judge below, I accept that a trustee is not under an obligation to go on endlessly seeking more and more information. It may also be that a trustee is not required to undertake any inquiries until and unless a claimant puts forward sufficient material to show that there is a case to be investigated." 73The principles in Finch and Alcoa illuminate the task of a trustee in properly determining the particular application before it. The consideration must be properly informed. To discharge this duty it may be necessary to make inquiries for relevant information to enable the formation of a reasonable opinion about the likelihood that the insured would ever be able to engage in regular remunerative work. In my opinion, information sufficient for this purpose would necessarily include factual information as to the actual likelihood of the insured obtaining regular employment for reward other than casual work, or work of an intermittent nature, and also as to the probable availability to him or her of such work or employment at the relevant time. It follows, in my opinion, that without such information a trustee would be unable to give properly informed consideration to an application for TPD, taking the realistic and common sense approach which the law requires. 74The onus upon the plaintiff was stated in Chapman v United Super Pty Ltd [2013] NSWSC 592 by Young AJ as follows: "53. In this litigation, the onus is on the plaintiff to establish that the Insurer's or Trustee's decision on the material before them to deny the plaintiff indemnity was (a) so unreasonable in all the circumstances that the Court is required to intervene, see Tonkin v Western Mining Corporation Ltd [1998] WASCA 101; or (b) that either the Trustee or the Insurer breached some duty to the plaintiff. It is not sufficient for the Court to say that had it been the initial decision maker, or if it were an appeal court hearing the matter de novo, it would have come to a different decision. The Court must focus on whether the decision of the Insurer or the Trustee or both was so unreasonable that a reasonable person in that situation could not have made it." (See also Maciejewski v Telstra Super Pty Ltd [1999] NSWSC 341 paras 13, 14 per Windeyer J).

The Insurer's decision of 11 August 2011 75On about 4 December 2009, the plaintiff lodged a claim for the TPD benefit with the Trustee, which was passed on to the Insurer. On 11 August 2011, the Insurer declined the claim. 76The plaintiff's challenge was on the ground that the Insurer's decision was unreasonable in that it failed to give proper consideration to Dr Burrow's reports, and to the evidence of the plaintiff's fitness for future employment. The defendants contended that the decision was one reasonably open on the evidence, and the court's interference was unwarranted. 77By letter of 11 August 2011 the Insurer informed the Trustee of its decision to decline the claim. It includes: "Notwithstanding the member's noted left elbow restrictions, a number of suitable job options, but not necessarily limited to, were identified by CRS following a vocational assessment taking into account the member medical status, education, training and experience, and of which were approved as suitable options by specialist, Mr Greggory Burrows. It is reasonable to suggest that the member would have access to a number of other alternate fields of employment whereby utilising his mechanical and construction site knowledge such as within equipment hire companies and/or a workshop foreman, mechanical solutions/industrial product sales, light engine mechanic (mowers etc) spare parts manager, to name but a few. Additionally, the member would not appear to be restricted in partaking in driving activities. To this end, the member is noted to have been non-compliant in the rehabilitation treatment and that of job seeking requirements, wishing more so to focus on his 'settlement' payout of his workers compensation claim. In this regard, we draw to the member's attention that the member owes an insurer a duty of utmost good faith and as such an insurer is entitled to assume that the member is highly motivated to obtain suitable paying work. The member is not permitted to bring about the unlikelihood of returning to work by his own 'wrong'. That is, by choosing to remain on worker's compensation in order to pursue his settlement. It is reasonably depicted that the member is not precluded from all forms of employment, with the member possessing transferable skills and experience of value in the open job market, of which the member could reasonably engage in, albeit his claimed left elbow injury." 78Relevantly, the material before the Insurer consisted of the medical report of Dr Phoon of 21 December 2009; medical reports of Dr Burrow of 7June 2010, 13 September 2010 and 7 May 2011; and the CRS reports of 18 May 2010 and 30 July 2010. 79The evidence demonstrated that the plaintiff was 43 years of age, and had worked most of his life as a labourer in the building and construction industry. His work involved heavy manual labouring requiring full use of both arms, for which his injuries left him permanently unfitted. 80The thrust of Dr Burrow's evidence is that the plaintiff is, and has been, effectively unemployable as a labourer, and is thus unable to follow the occupation for which he is suited. On 7 June 2010, about 9 months after the relevant date, he reported that the plaintiff was fit for office or light duties, but expressed in clear terms the view that, given the plaintiff's occupational and educational skills, it may prove very difficult to find meaningful employment. As to "workability" he suggested obtaining an opinion from an occupational physician, but believed the prognosis was poor. His opinion was that it would be very unlikely that the plaintiff would find work which met his particular skills set and permanent physical restrictions. 81 Dr Burrow's report of 13 September 2010 to Dr Phoon referred to continuing arthritic pain in the elbow from cartilage wear. He said he was fit for office or light duties not involving heavy lifting of the left elbow, or repetitive movements. 82In his report of 7 May 2011, Dr Burrow said the plaintiff was fit for full time office or light duties with the restrictions described. In response to questions as to fitness for specific occupations he said he was not an occupational physician or therapist, and that an opinion from such a person would be appropriate. 83The CRS report of 18 May 2010 referred to various vocational options, including traffic controller and school-crossing supervisor. It noted Dr Phoon's view that the plaintiff was currently unfit for work, as the plaintiff himself had said, and advised that job seeking advice/assistance had not commenced. The case closure summary of 30 July 2010 noted that the plaintiff had not been certified fit to work, and that vocational options, including traffic controller, had yet to be determined. 84In my opinion the reasons given for the Insurer's decision demonstrate an unreasonable failure to adequately consider the information in the medical reports and the CRS reports, as well as a failure to address the question under the second limb of the definition of TPD. 85The evidence of Dr Phoon and Dr Burrows supports the finding, which I make, that it was unlikely that the plaintiff would ever be able to engage in regular remunerative work for which he was reasonably fitted by education, training or experience. It was not open to the Insurer, acting reasonably, to find otherwise. 86There was no information which supported the opinion that there were suitable options or forms of employment available to the plaintiff either at 6 September 2009, or at all. The CRS reports stated that the rehabilitation and return to work programs had not been commenced, and that the plaintiff remained unfit for work. No assessment of his suitability for future employment had been made. No information was provided as to the requirements of any vocational option, or as to the prospects of the plaintiff obtaining any employment which would allow for his physical limitations. No information was provided as to the likely availability of suitable employment in the area where the plaintiff lived. 87Furthermore, in my opinion, it was erroneous to seek support for the decision in Dr Burrow's reports. The opinion that the plaintiff was fit for office or light duties gave descriptions which were, at best, vague and general. For the purpose of identifying suitability for an occupation in which the plaintiff could be likely to be engaged in the future, the descriptions were empty of content, and invited only speculation. The reasonable reader would understand that Dr Burrow's opinions as to fitness were confined to the plaintiff's physical condition. As to the prospect of "meaningful employment" and "ongoing workability" his opinion, on 7 June 2010, was that it was very unlikely. 88On the issue of suitability, Dr Burrow invited inquiry of an occupational physician or an occupational therapist. The suggestion was not pursued. It may be supposed that the purpose for which consideration was given to the reports of the rehabilitation advisor, CRS, was to enable the Insurer to gauge the suitability of the plaintiff for future employment and to identify an available occupation for which he was fitted by education, training, and experience. In this case, of course, the reports provided no such information. 89Furthermore, in my opinion, there was no evidence which supported the proposition that there existed forms of employment for the plaintiff of value in the open market in which he could reasonably engage. Taken overall, the decision reflects a failure to adequately consider whether, in the real world, work which required only the use of one arm and restricted use of the other was reasonably available for a manual labourer, such as the plaintiff (cf: Weber v Tiss Pty Ltd [2005] NSWSC 67, para 52). 90Accordingly, I uphold the plaintiff's challenge to the decision of 11 August 2011, and hold it was unreasonable and invalid.

The Trustee's decision of 8 September 2011 91By letter of 22 September 2011, the Trustee informed the plaintiff it declined the claim. Its reasons for doing so were stated in the document of 8 September 2011. 92The issues raised in respect of this decision were the same as those in respect of the Insurer's decision. 93Relevantly, the reasons stated: "The weight of the medical evidence provided clearly shows that the member is unlikely to ever return to his pre-injury occupation, due to his permanent medical restrictions, but is fit for suitable employment in a number of light and/or office based occupations that fits within his education, training and experience, particularly that of Traffic Controller, Equipment Hire/Sales Assistant. It is further shown that the member has qualifications in mechanical fitting which could lead to other occupations in the mechanical field such as small engine mechanic (mowers etc). The member is therefore reasonably depicted as having transferable skills and the capacity to undertake suitable employment should he wish to. On the basis of the medical evidence provided and the Insurer's assessment of the claim, we agree that the member does not fit the policy definition of Total and Permanent Disablement and agree with the Insurer's decision to decline the claim." 94In my opinion, the plaintiff's challenge to this decision should be upheld for the reasons given in respect of the Insurer's decision. I would add that had the Trustee approached its task reasonably, it would have become apparent that it lacked sufficient material to enable it to give properly informed consideration to the application. The inconclusive information in the CRS reports coupled with Dr Burrow's suggestions to consult appropriately qualified advisors indicated the necessity for further relevant inquiries to be made. The failure to undertake such inquiries precluded the Trustee from giving the application its properly informed consideration which was essential for a reasonable decision. 95I hold the Trustee's decision to be unreasonable, and invalid.

The First Reconsideration 96On 1 August 2012 the plaintiff's solicitors requested the Trustee and the Insurer to reconsider the claim. They provided additional information. The Insurer declined the claim on 24 August 2012, and the Trustee on 21 September 2012. It is convenient to deal with the challenge to these decisions together. 97In support of the challenge the plaintiff relied on the same grounds as before. It was also contended that both the Insurer and the Trustee had effectively disregarded the additional evidence in the plaintiff's statement of 19 July 2012 in support of the application for reconsideration of the claim. For the defendants it was put that it was reasonable to maintain refusal of the claim, and there was no basis for the court to interfere. 98Relevantly, the Insurer was provided with CRS reports of 5 November 2009, 10 December 2009, 1 February 2010, and 24 April 2010. None of these contained an assessment of the plaintiff's suitability for the vocational options identified, or provided relevant information additional to that contained in the reports considered for the purposes of the original decisions. Also provided were some reports of Dr Burrow which had been considered for the purposes of the original decisions. The relevant parts of the plaintiff's statement are set out in para 64 above. 99By letter of 24 August 2012 the Insurer informed the Trustee of its decision to decline the claim. It includes: "We do acknowledge the member's apprehension in relation to some of the employment options identified. However, it is reasonably documented from the outset of the vocational counselling sessions that the member was adverse to most of the suggested lines of employment lines identified, despite retaining a physical ability and capacity to engage in such duties, and of which the treating Orthopaedic Surgeon, Dr Burrow did agree to the identified vocational options, although not necessarily restricted to just those roles. There is no dispute that the member will be unlikely ever to resume his usual heavy occupational duties as a casual Labourer on a full or part time basis, in the short or long term. It is however reasonably documented, that the member is not precluded from engaging in lighter alternate forms of employment to which the member is reasonably suited by reason of his education, training or experience, albeit his left elbow injury, and as such it is in our opinion that the member does not satisfy the second limb of the policy's TPD definition. No two advertised jobs will be exactly the same, and that any advertised role would need to be sensibly assessed on their own individual suitability. The member at the applicable Date of Disablement was still of a relatively young age (43 years), and therefore it is not improbable that such suitable job role/s may readily be available in the open job market, should the member be so motivated to return to the workforce. To this end, Dr Burrow at time of writing his report dated 7 May 2011 did form the view that the member is fit for immediate full time office, or light duties with the restrictions described." 100The reasons for the Trustee's decision were given in its document of 13 September 2012. It found there was no new or relevant medical evidence which supported the plaintiff's claim that he was TPD. Reference was made to Dr Burrow's reports which, in fact, had been considered for the purposes of the original decisions. The reasons included: "The additional information provided by the member's representative, under cover of letter dated 1 August 2012, does not contain any new and/or relevant medical evidence which supports the member as being Totally and Permanently Disabled in relation to his MVA and date of disablement, 6 March 2009. Whilst the member has provided a detailed statement in which he attempts to clarify and/or dispute most of the points raised by the Fund's Insurer, in their letter of decline dated 11 August 2011, this does not constitute medical evidence and so does not provide any viable weight to his claim. The remainder of the information provided also does not add any weight to the claim for TPD in that is covers the member's condition, treatment and rehabilitation rather than his current work capacity, either as the date of disablement and/or projected into the future." 101In my opinion the decision of each of the Insurer and the Trustee is flawed for the reasons given in respect of the original decisions. It is unnecessary to repeat them. In short, each lacked a reasonable evidentiary foundation for the opinion that the plaintiff had the capacity to undertake suitable employment in the future. 102Further, the decisions disclose that both the Insurer and the Trustee failed to give the plaintiff's statement any fair and genuine consideration, alternatively, failed to give it due weight in the decision-making process. The Insurer appears to have ignored it altogether. The extent of the Trustee's evaluation appears from the passage referred to above. 103The details provided by the plaintiff were uncontradicted. He described the extent to which he is, and was, handicapped by recurring pain and headaches and restrictions in carrying out domestic tasks of the most ordinary kind. He said that he had no office or clerical skills, and doubted his intellectual capacity to perform work requiring office, clerical, or customer service skills. He stated that his education, training and experience fitted him only for heavy physical duties. 104The plaintiff also provided details of his observations of the requirements for work as a traffic controller and a school-crossing supervisor, and described the respects in which his injuries precluded him from this type of work. It was the only evidence which the Insurer and the Trustee had on these matters. There was no rational basis for declining to take it into account. The notion that some employer might employ the plaintiff to do clerical work, or to work as a traffic controller or school-crossing supervisor, had to be reconsidered in the light of the matters described in the statement. It is difficult to see that a properly informed consideration of the plaintiff's situation would lead to the conclusion that he had realistic prospects of employment in work of this kind. 105In my opinion, the statement provides additional evidence which demonstrates that the decisions were not reasonably open to a person who had given fair and genuine consideration to the material before him. Furthermore, in my opinion, rational consideration of the significance of this additional evidence as part of the whole would inevitably have led to the formation of the relevant opinion under the second limb of the definition in the Policy, with the result that the claim should have been accepted. 106Accordingly, I hold that the decisions of the Insurer of 24 August 2012, and the decision of the Trustee of 21 September 2012 are unreasonable, and invalid.

The Second Reconsideration 107On 18 March 2013 the plaintiff's solicitors requested the Trustee and the Insurer to reconsider the claim, and provided additional information. The Insurer declined the claim on 12 April 2013, and the Trustee on 27 May 2013. It is convenient to deal with the challenge to these decisions together. 108Relevantly, the additional material were the reports of Dr Patrick of 25 July 2012 and 2 August 2012, and of Ms Nelson of 19 May 2010. 109The plaintiff's principal ground for challenge was what was said to be the failure by the Insurer and the Trustee to fairly consider and weigh the evidence in the reports of Dr Patrick. The defendants contended that the matters raised in the reports of Ms Nelson and Dr Patrick were duly considered, and nothing in the additional material reasonably required them to arrive at a different decision. 110By letter of 12 April 2013, the Insurer informed the Trustee of its decision to decline the claim. It noted that the plaintiff had relocated to Iluka, Tweed Heads, in September/October 2009 and later to the North Coast region of Gorokan (sic) where he lives and resides alone. The reasons include: "At this point, we reflect that Mr Patrick's assessment of the member in 2012 was conducted a period of some three (3) plus years beyond the relevant Date of Disablement in this matter, at which time with the member's physical state had likely de-conditioned, and probably experiencing some normal progression of age due to the passage of time. Therefore, Mr Patrick's more recent assessment does not necessarily attest with any accuracy as to the member's functional work capacity of closer proximity to the relevant 'Date of Disablement'. As such, Hannover Life Re shall place more weight of evidence towards those reports compiled at an earlier point in time. Of some importance in this matter, is the fact that the member is noted to have been non-compliant in the rehabilitation process, and job seeking requirements, with more so a focus in receiving a 'settlement' payout from his workers compensation claim. ... It is reasonably depicted that the member is not precluded from all forms of employment, with the member possessing transferable skills and experience of value in the open job market, of which the member could reasonably engage in, albeit his claimed left elbow injury. We do acknowledge that the member may experience some apprehension to some of the employment options identified, however it is reasonably documented from the outset of the vocational counselling sessions that the member was adverse to most of the suggested lines of employment lines identified, despite retaining a physical ability and capacity to engage in such duties, and of which the treating Orthopaedic Surgeon, Dr Burrow did agree to the identified vocational options, although not necessarily restricted to just those roles. The applicable definition of 'Total and Permanent Disablement' is directed towards a persons' 'work capacity'. On the balance of the information presented, the member in our view is not substantiated, not portrayed to be unlikely ever to be able to engage in regular remunerative work, for which they would be doing work in any employment, business or occupation for rears - of the hope of reward - of any type." 111The reasons for the Trustees decision were given in its document of 7 May 2013. Reference was made to the reports of Ms Nelson and Dr Patrick. The reasons include: "In his reports, Dr Patrick stated: "I believe his condition has stabilised in accordance with para 1.21 MAA Guidelines, p4, having reached maximum medical improvement." (02.08.2012) "...permanently incapacitated for work of a physical/manual nature which involves heavy use of either arm, or significant use of either arm outstretched or overhead. He needs to avoid activities which put undue strain onto the left elbow in particular, and he needs to avoid activities which involve working with the head/neck in sustained or awkward position/postures. His extension (looking upwards) and right lateral rotation at cervical spine are significant restricted. He is very limited now by his left elbow and should." (25.07.2012) However, Dr Patrick does not provide an opinion as to whether the member was totally and permanent disabled, as per the Policy definition, and/or whether or not the member has a functional work capacity for any alternative occupation for which the member may have been suited for, by way of his education, training or experience. On the basis of additional information provided, we believe that there has been no new and/or relevant information which would cause HLRA to alter their initial and/or subsequent decision to decline the member's claim for a TPD benefit". 112In my opinion, these decisions must suffer the same fate as the earlier decisions, and for the same reasons. The decisions also indicate a failure to fairly consider and evaluate the evidence of Ms Nelson and Dr Patrick. In short, their evidence weighed heavily against the proposition that the plaintiff was likely to ever engage in suitable work. 113Proper consideration of this evidence in light of the whole of the material which had been, and was, before the Insurer and the Trustee should have led each of them to conclude that there was nothing which reasonably supported a decision to decline the claim. For example, Ms Nelson's opinion (para 55 above) was to the effect that more had to be done before the plaintiff's capacity for future work could be assessed. Dr Patrick's virtually negative prognosis of the plaintiff's capacity for future work (para 62 above), although given nearly three years after the relevant date, was relevant, and warranted due consideration. 114The conclusion adverse to the plaintiff because of irregular attendances at treatment sessions was irrelevant to the issues under the question for determination. In any event it appears both the Insurer and the Trustee ignored Ms Nelson's explanation that the non-attendances were due to a viral infection. 115The duty of both the Insurer and the Trustee was to reach a fair and reasonable decision having given properly informed consideration to the application. Formulation of a reasonable opinion within the definition of TPD in the Policy required evidentiary support. In this case the necessary support for an opinion that the claim should be declined was lacking. On the other hand, the uncontradicted evidence which was before the Insurer and the Trustee, had it been given proper consideration, should have led to acceptance of the claim at every stage. 116Accordingly, I hold that the decision of the Insurer of 12 April 2013, and the decision of the Trustee of 27 May 2013 are unreasonable, and invalid.

Conclusion 117In light of the findings, and as agreed, it is appropriate for the Court to determine the plaintiff's claim. For the above reasons, I am satisfied that the plaintiff has established that he was within the definition of TPD in the Policy, and is entitled to be paid the benefit, namely the amount of $100,000. 118I propose to make declarations in terms of prayers 1, 2, 3, 4 and 5, and orders in terms of prayers 6, 7 and 8 of the Further Amended Statement of Claim. I propose to order the defendants to pay the plaintiff's costs. 119I direct the parties to bring in Short Minutes to give effect to these reasons. Failing agreement, arrangements should be made with my Associate to re-list the matter.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2014

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