Folmer v VicSuper Pty Ltd & Anor

Supreme Court of NSW|2018-06-28|Before: Hallen J, Ellis J

13] NSWSC 1115 Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36 Gilberg v Maritime Super Pty Ltd [2009] NSWCA 325 Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 Hannover Life Re of Australasia Ltd v Dargan (2013) 83 NSWLR 246; [2013] NSWCA 57 Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233 Hannover Life Re of Australasia Ltd v Sayseng (2005) 13 ANZ Ins Cas 90-123; [2005] NSWCA 214 Hellessey v MetLife Insurance Limited [2017] NSWSC 1284 Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325 Jones v United Super Pty Limited [2016] NSWSC 1551 Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2011] NSWCA 204; (2011) 282 ALR 167 McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 MX v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme [2018] NSWSC 923 National Mutual Life Association of Australasia Limited, the application of National Mutual Life Association of Australasia Limited and AMP Life Limited (No 2) [2016] FCA 1591 Newling v FSS Trustee Corporation (No 2) [2018] NSWSC 1405 Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; (2016) 332 ALR 507; [2016] NSWCA 68 van der Noll v Sovereign Assurance Co Ltd [2013] NZHC 3051 White v Overland [2001] FCA 1333 White v The Board of Trustees [1997] 2 Qd R 659 Ziogos v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme [2015] NSWSC 1385 Texts Cited: W I B Enright and R M Merkin, Sutton on Insurance Law (4th ed, 2015, Thomson Reuters), Vol 2 Category: Principal judgment Parties: Susan Jane Folmer (Plaintiff) VicSuper Pty Ltd (first Defendant) AMP Life Ltd (second Defendant) Representation: Counsel: Mr A Coombes (Plaintiff) Mr C Hanson (Defendants)

Solicitors: Firths The Compensation Lawyers (Plaintiff) HWL Ebsworth Lawyers (Defendants) File Number(s): 2017/117269

Introduction

HIS HONOUR: This case is another sad illustration of a dispute that has arisen between the insured, on the one hand, and the trustee of a superannuation fund, and the insurer on risk, on the other, in relation to the entitlement of the insured to benefits, in circumstances where the question whether she became totally and permanently disabled ("TPD") within the meaning of that term in the policy of insurance and/or under the trust deed of the superannuation fund has been debated. (As will be read, the claim against the insurer, now, is the only part of the claim that is to be determined in the proceedings.)
The Plaintiff, Susan Jane Folmer, commenced working with Aspire Mental Health Service ("the Employer"), as a community development officer and counsellor, sometime in late 2007. She ceased working with the Employer on either Friday, 25, or Monday, 28, January 2008. She claimed that she has been unable to work since then; that she will never work again; and that, as a result, she is entitled to a TPD benefit that has not been paid to her. She seeks an order that the insurer is required to pay the TPD benefit provided for in the policy to the trustee for her benefit and that it be paid to her.
VicSuper Pty Limited, the first Defendant ("the Trustee"), is the trustee of the Victorian Superannuation Fund ("the VS Fund") constituted by a Trust Deed, relevantly dated 30 May 2013 ("the Trust Deed"), which provided for certain benefits including, in certain events, a TPD benefit, to members of the VS Fund. It exercised its trustee functions pursuant to the Trust Deed, as amended from time to time.
The National Mutual Life Association of Australasia Limited ("NMLA"), the corporate predecessor of AMP Life Limited, the second Defendant ("the Insurer"), had entered into a Group Life Death, TPD & TTD (Superannuation) Insurance Policy, bearing Policy number GL 21297 ("the Policy") with the Trustee. (TTD is "total and temporary disability" and is not the subject of any claim in these proceedings.) The Policy was effective from 1 February 2001.
On 12 December 2016, the relevant life insurance business of NMLA was transferred to the Insurer (which was then also a life insurer) pursuant to s 194 of the Life Insurance Act 1995 (Cth), under a scheme approved by the Federal Court of Australia, such that the Insurer, thereafter, held the rights and obligations of NMLA under the Policy. Importantly, the Insurer also assumed the liabilities of NMLA under the Policy. Another consequence was that the rights, benefits and liabilities of an owner of a policy with NMLA and of all persons claiming through, or under them, would be the same, in all respects, as they would have been if the Policy had been issued, or entered into, by the Insurer instead of NMLA: National Mutual Life Association of Australasia Limited, the application of National Mutual Life Association of Australasia Limited and AMP Life Limited (No 2) [2016] FCA 1591.
Pursuant to the Policy, in return for the Trustee agreeing to make certain payments to the Insurer, the Insurer agreed to insure members of the VS Fund against, amongst other things, TPD and TTD. Relevantly, and in general terms, the Policy provided that in the event that a member of the VS Fund to whom the Policy extended cover became TPD, the Insurer would pay the Trustee a "TPD Benefit".
The TPD benefit applicable to the Plaintiff's claim in the present case is $90,000.
The Plaintiff became a member of the VS Fund on 21 September 2007 as an incident of her employment with the Employer. She paid premiums under the Policy from the date she joined the VS Fund so that she would be eligible for benefits from the Fund in the event that she became TPD. Insurance cover became effective as soon as she joined the VS Fund. Her insurance cover remained in force until 17 March 2010.

Overview of the Claim

By way of brief overview, which will be expanded later in these reasons, I set out the broad chronology set out by counsel for the Plaintiff in relation to the claim for payment of a TPD Benefit.
On about 15 October 2014, the Plaintiff lodged a claim ("the Claim") with the Trustee for payment of a TPD benefit under the Policy. The Trustee, in turn, lodged the Claim with the Insurer, on about 5 January 2015 (Ex. A/202).
On 31 May 2016, the Insurer sent a "procedural fairness" letter to the Plaintiff's solicitors. On 16 March 2017, the Trustee declined the Plaintiff's claim. On a date, or dates, the subject of dispute, the Insurer declined the Plaintiff's claim. On 27 September 2017, the Insurer provided reasons for declinature. On 5 December 2017, and on 8 January 2018, the Plaintiff requested the Defendants to reconsider the declinature of her claim. On 16 February 2018, the Insurer again declined the Plaintiff's claim. On 19 March 2018, the Plaintiff again sought reconsideration of the declinature of her claim.
At the date of the hearing, neither the Trustee, nor the Insurer, had taken any steps to further reconsider the Plaintiff's claim: see, Paragraph 7 of the Plaintiff's written Outline of Submissions. However, the Plaintiff later informed both that she did not wish her claim to be reconsidered again.

The Proceedings

On 19 April 2017, the Plaintiff commenced the proceedings by Statement of Claim, against the Trustee, which was named as the first Defendant, and against NMLA, which was named as the second Defendant.
The Plaintiff's Statement of Claim was amended on 17 May 2017, by changing the name of the second Defendant from NMLA to the Insurer. It was amended again, with the leave of the Court, by a further amended Statement of Claim filed on 18 June 2018.
At the commencement of the hearing, the Court was referred to the amended Statement of Claim, the Defence to the amended Statement of Claim filed by the Trustee on 27 June 2018 and the Defence to the amended Statement of Claim by the Insurer, also filed on 27 June 2018.
A two volume Court Book was marked tendered and marked Ex. A: T2.21 - T2.36. The Exhibit comprised about 780 pages, and included a copy of the pleadings and particulars, the Policy, the Claim documents, the affidavits of the Plaintiff, the correspondence, the medical evidence "on the first consideration", the medical evidence "on the first requested re-consideration", the medical evidence "on the second requested re-consideration", and various miscellaneous documents (to some of which no reference was made).
There is no dispute that if the Plaintiff succeeded in her claim, the Court should make orders in terms that are appropriate to ensure that she receives the benefits to which she is entitled.
The Court is grateful for the orderly conduct of the hearing and the assistance provided by the legal representatives of each of the parties.

The Issues raised in the Pleadings

In broad summary, the Plaintiff asserted that, as a result of her disabilities, she had not worked since ceasing work with the Employer on 25 (or 28) January 2008. She claimed to have qualified as being TPD, within the provisions of the Policy as she "has been continuously unable to work because of injury of illness for the TPD Waiting Period" and because she "is unable ever again to work for reward in any business, occupation, or regular duties for which she is reasonably qualified by education, training or experience".
As against the Trustee, the Plaintiff asserted that it "was under a duty to do everything that was reasonable to pursue an insurance claim for the benefit of the Plaintiff, if the claim has reasonable prospects of success". She relied on s 57(2)(d) of the Superannuation Industry (Supervision) Act 1993 (Cth) ("the SIS Act"). She also asserted that the Trustee had "failed to do everything that was reasonable to pursue the Plaintiff's claim", in that it failed "to form an opinion that the Plaintiff's claim against the [Insurer] has a reasonable prospect of success"; that the Trustee had failed to "commence proceedings against the Insurer" and that it had failed "to take over the claim or these proceedings against the Insurer".
In the Plaintiff's written submissions, counsel contended that the Plaintiff was the only beneficiary of the fund who had (or could have) an interest in any right of action that the Trustee had against the Insurer in connection with the Claim made by the Plaintiff for payment of the TPD benefit under the Policy held by the Trustee with the Insurer. Accordingly, the Trustee had a duty to protect the interests of the Plaintiff in respect of the Claim under the Policy. That included considering whether the Insurer's decisions to decline the Claim were made in breach of the Insurer's duty to the Plaintiff.
Importantly, then, whilst acknowledging that the Trustee had an obligation, under the Deed of Trust, to form its own opinion as to whether the Plaintiff was "Disabled", and accepting that, in March 2017, it had declined the Plaintiff's claim for payment of the TPD Benefit from the Fund, she did not challenge that declinature in these proceedings. Accordingly, the Trustee's decision to the decline the Claim was not the subject of challenge.
Almost at the conclusion of the final oral submissions made by counsel for the Defendants, the Court enquired of counsel for the Plaintiff whether the Plaintiff was pursuing the claim against the Trustee (principally because no oral submissions had been made about it). After obtaining instructions, counsel answered that the Plaintiff did not intend to press the claim brought against the Trustee and accepted that proceedings against the Trustee should be dismissed: T132.35 - T132.46. Accordingly, the lines of defence adumbrated by the Trustee in the pleadings were abandoned. It is, therefore, unnecessary to refer, further, to the allegations made against the Trustee, or its defences, unless relevant to the remaining issues to be decided.
In relation to the Insurer, the Plaintiff challenged the Insurer's decisions to decline her claim for the TPD Benefit under the Policy, asserting that each of its decisions was "wrong in law"; she sought a declaration that she "satisfies the definition of TPD in the Policy"; she sought an order that the Insurer pay to the Trustee, in trust for her, the defined TPD benefit of $90,000; she sought an order that the Trustee pay the defined TPD benefit to her "subject to applicable taxes"; and she sought an order for interest and for costs.
By the further amended Statement of Claim, the Plaintiff added a reference to a decision by the Insurer on 27 September 2017; the request for reconsideration of that decision by request made on 5 December 2017, and, again, on 8 January 2017; the further decision to decline the claim on 16 February 2018; another request for reconsideration on 19 March 2018, and the subsequent non-acceptance by the Insurer.
The Plaintiff asserted that in "failing to make a decision to pay the Plaintiff's claim, and then declining the claim, on each occasion it did so, [the Insurer] acted in breach of its duties". The particulars of her claim against the Insurer were: "24.1 Failing to consider and determine the Plaintiff's claim within a reasonable time. 24.2 Failing to act with fair dealing. 24.3 Failing to act reasonably in considering the Plaintiff's claim. 24.4 Failing to properly assess the Plaintiff's claim. 24.5 Failing to form an opinion based on a real and genuine consideration of the evidence."
The Plaintiff asserted a loss, as against the Insurer, being the insured TPD benefit of $90,000 and interest.
The Insurer, in its verified Defence, denied that the Plaintiff was entitled to any relief as claimed, or at all.
In summary, the Plaintiff set out the following issues for the Court's consideration: 1. In declining the Plaintiff's claim on any of the occasions on which it did so, did the Insurer breach its duty and obligations to the Plaintiff? 2. In failing to reconsider the Plaintiff's claim in the period 19 March 2018 to date, did the Insurer breach its duty and obligations to the Plaintiff? 3. Is the Plaintiff TPD for the purposes of the Policy?
There was no dispute raised that, if the Plaintiff met the terms and conditions for the payment of a TPD benefit, she was entitled to the TPD Benefit of $90,000 under the Policy. It was also accepted by the Insurer that she was entitled to interest, but the question, then, would be the date from which interest would be calculated: T18.22 - T18.29.
There was also no dispute that a member of a superannuation fund in respect of whom the Trustee has obtained insurance cover had standing to seek an order that the Insurer pay the Trustee the amount due to the Trustee under the contract of insurance: Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115, at [54]. It was accepted that the member had standing to bring a claim under the Policy against the Insurer, even though it was a Group Life Policy.

An Issue arising at the Hearing

At the commencement of the hearing, before the opening address by counsel for the Plaintiff, counsel for the Defendants raised some issues regarding the Plaintiff's claim: T3.04 - T6.39.
Counsel stated that there were three matters in the written submissions filed for the Plaintiff that had not been pleaded, that had not been pursued during the course of the preparation of the proceedings, and that were not identified, other than in the written Outline of Submissions served shortly before the hearing.
The first issue raised was that the Plaintiff sought to mount a case against the Insurer, for "constructive denial" (as referred to in Paragraphs 8(b), 28 and 31 to 36 of the Plaintiff's submissions). The second was that the Plaintiff sought to assert that the Insurer had not given reasons (as referred to in the submissions at Paragraphs 38 to 41). The third was that the Plaintiff claimed a right to pursue the Trustee in respect of the denial of the Plaintiff's claim separately from these proceedings (as referred to, at Paragraph 13 of the written submissions).
In relation to the first and second issues, counsel for the Insurer submitted that the Insurer had not been given an opportunity to consider the evidence that was required to be gathered, and relied upon, with the result that it would be significantly prejudiced if the Plaintiff was allowed to raise either, or both, of the issues, so late in the proceedings, without having pleaded them.
In relation to the second issue, in addition to prejudice, counsel submitted "there's just no utility in a constructive denial argument in this trial": T5.21 - T5.22. On the issue of prejudice if such a claim was permitted to be made, he added that there was evidence of reasons having been given by the Insurer to the Trustee, and that if the Trustee had not provided those reasons to the Plaintiff, that failure might raise a conflict between the two Defendants that had not been considered and that could not be resolved at this late stage of the proceedings.
In relation to the third issue, counsel pointed to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45, and submitted that the Plaintiff may be estopped from pursuing the Trustee in respect of the denial of the Plaintiff's claim in the future: T6.14 - T6.39.
In relation to the first issue, counsel for the Plaintiff accepted that no relief had been sought in the further amended Statement of Claim that specifically addressed the claim of constructive denial and that, strictly, the Plaintiff did not need to rely on a constructive denial, but that it might be necessary for the Court to consider the point otherwise: T7 - T8.
In relation to the second issue, counsel for the Plaintiff submitted that a failure to give reasons is, at most, a particular of a breach of the Insurer's duty of utmost good faith, and even if it were not pleaded as such, it was a matter of which the Insurer was acutely aware of the assertion made against it well before the hearing, as the Plaintiff's solicitors had referred to such a complaint in a letter dated 27 September 2017, which was in evidence, and upon which the Insurer itself was relying.
This issue was abandoned after counsel for the Plaintiff called on a notice to produce, returnable on 25 June 2018, and when counsel for the Defendants produced a copy of the document sought in that notice to produce, and enabled the inspection of that document. The copy document that was produced, and which was inspected, was subsequently tendered and formed part of Ex. A: Ex. A/243(a) - (d). It was headed "TPD Final Summary dated 23/11/2016". This document was said to have been accepted as the first decision and the reasons provided by the Insurer to the Trustee for declining the Plaintiff's claim. (It will be referred to in some detail later in these reasons.)
In relation to the third issue, counsel for the Plaintiff clarified that the proposition raised in the written submissions was not that the Plaintiff was going to commence separate proceedings against the Trustee seeking to traverse the decision already made by it to decline the Claim, but that if the Court were persuaded by the Plaintiff's case against the Trustee and there were a declaration made to the effect that the Plaintiff is TPD for the purposes of the Policy, it would become necessary for the Trustee to revisit its initial decision to decline the claim, and, at that point, the Plaintiff would, if necessary, traverse any further decision that might be made by the Trustee.
This issue evaporated when counsel for the Defendants stated that any such action by the Plaintiff would be "entirely unnecessary" as if the Trustee received the TPD Benefit from the Insurer, it would forward the money to the Plaintiff: T17.14 - T17.29.
The parties were informed of the Court's ruling after the submissions had been made. In relation to the remaining first issue, I concluded that the Plaintiff should not be permitted to raise it so late, and through the door of written submissions, when it had not been pleaded, or otherwise brought to the attention of the Insurer, that such a claim would be made. To do otherwise would not facilitate the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings, would contravene the objects of case management set out in s 57 of the Civil Procedure Act 2005 (NSW) and would not follow the dictates of justice as required by s 58(1) of the Civil Procedure Act, having regard to the matters referred to in s 58(2).
During the course of the argument, the Court referred, amongst other matters, to what Allsop J (as his Honour then was) had written in White v Overland [2001] FCA 1333, at [4], by way of general principle, namely that: "[I]n the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly." (Emphasis in original.)
(What had been written by Allsop J has been referred to, on many occasions, in this Court, including, relatively recently, by the Court of Appeal, in Benn v New South Wales [2016] NSWCA 314, at [62], per Gleeson JA, with whom Meagher JA and Johnson J agreed.)

The Hearing

Only the Plaintiff was cross-examined. She had relied upon an affidavit sworn on 23 August 2017, and another sworn on 26 October 2017, a copy of each of which had been included in the Court Book and which were read in the proceedings.
No submission was made by counsel for the Defendants concerning the reliability, or otherwise, of her evidence.
Following the cross-examination of the Plaintiff, counsel made submissions.

Uncontroversial History

It is next necessary to set out the factual basis underlying the Plaintiff's claim. At least some of the facts asserted in the Plaintiff's affidavits, in her oral evidence, and in the documents included in the Court Book, were not the subject of any dispute. What follows is the broad factual background taken from the evidence. To the extent that any facts set out are in dispute, they should be regarded as findings of the Court.
The Plaintiff was born in January 1971 and is, currently, 47 years old. She is not married and she has no children.
There was no evidence given of her remaining expected working life at the time she ceased working with the Employer on 25 (or 28) January 2008. However, at that time, she was 37 years old, so one might expect that she had a reasonably long working life ahead of her.
Despite having left school at the age of 15 years, the Plaintiff was, at the date of hearing, very well educated and trained, having undertaken Commerce Studies with Launceston College of TAFE in Tasmania (about 1991); an Associate Diploma of Social Science (Community Services) from the North West Institute of TAFE, Tasmania (1993 - 1994); an "Achievement Award - Train the Trainer - Train Small Groups" also from TAFE (1993); a Bachelor of Arts (Humanities) from the University of Tasmania (1996 - 2000); a Bachelor of Social Work (2001 - 2004), and a Masters of Social Work (2005 - 2007), both from Monash University. Between 1994 and 2005, she was involved with, and attended, numerous conferences, seminars, and workshops with respect to her professional development.
Between 1994 and November 2005, at different times, the Plaintiff had held various positions, in different organisations, in different states of Australia, as a counsellor, youth support worker, disability support worker, case worker, social worker, and a researcher. She had been involved in areas of personal development, counselling, community development projects, women's health, the provision of assessment and intervention to Centrelink customers, case work and regular case conferencing.
The Plaintiff, in a document headed "Career Summary" (Ex. A/160) described her skills as including "Strength in the understanding, interpretation and delivery of theoretical and practical administration of Policy development, implementation and evaluation in health care and social service provision"; "excellence in understanding of and ability to plan and co-ordinate Community Education & Training, Community Development and Health Promotional activities"; a "demonstrated ability in the Co-ordination and Management of programs in community services". She also stated that she was a "Published writer on Community Development & Health Promotional Models".
In this document, the Plaintiff stated that she had "Eighteen years experience Project Co-ordination, Case Work, Counselling & Community Education & Training, Community Development and Health Promotional activities". She gave oral evidence that "over the period from … the late 1990s onwards, [her] work, when [she was] working, was in social work": T32.29 - T32.31.
In March 2006, the Plaintiff was involved in what counsel described as a "very unfortunate incident": T33.42 - T33.43. She was involved in a single vehicle motor vehicle accident in Warrugul, Victoria. It was alleged that she was alcohol affected at the time of the accident. She asserted that, following her arrest, she had been taken into police custody, searched whilst in custody, and assaulted by the police (including sexually). She described this incident as "having ruined my life": T34.04 - T34.06.
The day after the incident, the Plaintiff, assisted by her sister, returned from Victoria to northern Tasmania. It was on 14 March 2006 that she attended the Burnie Medical Centre where she was seen by Dr A Stillger, by whom she has been treated since then: T35.27 - T35.28.
The Plaintiff gave evidence in cross-examination (T36 - T38) in relation to the sequelae of the events in 2006, which may be summarised, as follows: 1. When having to deal with the police, her stress would increase; 2. At any time that she needed to go to court, it had caused her great stress; 3. Her anxiety and depression would gradually improve and then she would have something to do with a court event and her condition would worsen again; 4. The great stress she felt in attending at court would affect her depression and anxiety; 5. The outcome of the proceedings had been "quite unpleasant"; 6. Following the conclusion of the (initial) court proceedings, she started to feel better.
The Plaintiff did not include in the particulars referred to in the amended Statement of Claim, or otherwise provide in her affidavits, a detailed explanation of the experiences referred to which she said had caused her to suffer from what she claimed to be PTSD.
(As will be read, there is some medical evidence about what are said to be the psychological consequences to the Plaintiff of the events of March 2006.) She agreed that, prior to those events, she "had issues with depression and anxiety at various times": T34.15 - T34.17.
Following a complaint made to the Tasmanian Police, and the pursuit of criminal charges by her, a court ruled that the bruises which she said had occurred during the assault were self-inflicted. The Plaintiff was charged with, and subsequently convicted of, making false statements: Ex. A/243(c); T36.11 - T36.18.
The jury trial, in which she was convicted, occurred in about July 2008 and had lasted for about one week. Shortly before the trial commenced, she was referred to Mr Marriott, a Clinical and Forensic Psychologist, to whom she had been referred, for the first time in about 2000, and then, subsequently, with "increasing panic with her impending trial": T41.
On 8 May 2006, the Plaintiff registered a business name in Tasmania, called "Solutions by the Sea", and, in private practice, she engaged in holistic counselling, therapy, and "Educative Consultancy", specialising in working with children and adolescents, family therapy, group work, counselling for matters related to stress, grief, and loss, personal development, alcohol and drug issues, and sexual and mental health: Ex. A/159. She gave evidence that it was "A private practice in counselling and consultancy on community development projects": T38.31 - T38.36.
In her evidence, the Plaintiff also stated that she conducted this business and thought that she had been working in it in 2007 (at least before she commenced work with the Employer). The hours of work in which she was engaged was not the subject of evidence.
In late 2007, the Plaintiff commenced work with the Employer. Although its head office was in Victoria, the Plaintiff worked on the north-west coast, and also, on the north coast, of Tasmania.
The Plaintiff described her duties as "providing counselling to individuals and groups, setting up a carers' centre, and assisting people in crisis": Ex. A/170. Her duties, as disclosed in an Employer's Statement, dated 23 November 2014, were described as "works with clients, documents information": Ex. A/152.
The Plaintiff acknowledged that she has, or had, an abiding interest in social work: T32.01 - T32.04.
In January 2008, whilst still employed by the Employer, the Plaintiff commenced a full-time course to obtain a PhD in Philosophy of Modern Social Work at the University of Tasmania. When she commenced the course, she felt it was the right choice for her "to think about other options for my future in terms of employability", including, perhaps, going into academia. She studied off campus via online, telephone and correspondence. She continued as a research candidate until she "totally withdrew from the course on 21 April 2011" (Ex. A/239).
At about the time she commenced work with, and whilst employed by, the Employer, the Plaintiff became aware that her mother had health issues. Her mother suffered a severe cerebral stroke which caused bleeding on the brain and which required her mother to be rushed to Hobart for emergency surgery. Whilst her mother was so unwell, it fell to the Plaintiff, at least partly, to look after other members of the family: T39.
The precise circumstances in which the Plaintiff ceased working with the Employer are not set out, in any detail, in the evidence. There does not appear to have been a specific incident that prompted the cessation of her employment. Nor did the Plaintiff assert that she had been injured at work or that she was discharged by the Employer on medical grounds.
In an Application for "Early access to reserved superannuation benefits on medical grounds" dated 7 August 2014 (Ex. A/144 - 145), the Plaintiff stated, as the reason for her retirement from the workforce, "Nervous breakdown. Mutual agreement to cease work". (The date of the "nervous breakdown" was not identified in that document.)
In the amended Statement of Claim, the Plaintiff asserted that "on or about 25 January 2008", she had "ceased all work as a result of psychological injury or illness in the nature of Post-Traumatic Stress Disorder, anxiety, depression and agoraphobia". She denied that she decided to leave the Employer so she could concentrate on the PhD and looking after her mother: T40.27 - T40.29.
In her oral evidence, the Plaintiff maintained that she had been unable to perform the normal duties of her occupation from about 25 January 2008 "due to [a] breakdown, emotional, and physical inability to perform": T31.14 - T31.19. She repeated, when asked, at T49.48 - T49.50, that at that date she ceased work with the Employer, she was of the view that she was unable to work.
(There is a reference in a report dated 27 October 2010 (Ex. A/297 - 300), which report pre-dates, by some years, the Claim, to the Plaintiff having repeated that she did not feel that she was in a fit state to work and had decided to do more study whilst she tried to get better.)
Counsel for the Plaintiff submitted that it was "an illness case, in the sense that 'illness' isn't defined in this policy and 'illness', in my submission, is typically understood in these types of policies as extending to psychological illnesses": T62.36 - T62.41.
Following her ceasing employment with the Employer, the Plaintiff looked after her mother and continued with her PhD studies: T40.34 - T40.36.
In cross-examination, the Plaintiff accepted that the PhD, caring for her mother and working for the Employer "was all a bit much": T40.23 - T40.25.
The Plaintiff accepted that by March 2009, she had presented to Dr Stillger as "good at present"; that, then, she was still actively engaged in pursuing the PhD studies at the University of Tasmania; that she was getting an Abstudy benefit, which was a group of payments for Aboriginal or Torres Strait Islander students; and that the Court cases, stemming from the incident in March 2006, had all, one way or another, resolved and were behind her: T43.08 - T43.32. She also admitted that "up until September of 2009 [she] had been recovering from the events of 2006": T45.11 - T45.13.
However, the Plaintiff maintained that different stressors would impact upon her and that sometimes the condition about which she complained could be triggered by something that she would not even see coming: T51.48 - T52.04.
In September 2009, the Plaintiff was assaulted by a former boyfriend as a result of which assault she sustained several physical injuries, including several rib fractures, she had difficulty breathing and suffered ongoing pain in her back. The assault also had an aggravating effect on any anxiety, or depression, from which she was suffering and made her more agoraphobic: T43 - T44.
The Plaintiff also gave evidence that she had not recovered after the assault and that it had a profound impact upon her physically, because, during an MRI, an arachnoid cyst was found in her thoracic spine area that could not be removed, which had affected her mobility as well as her ability to sit. She repeated that the assault also had made her anxiety and depression worse and that she suffered terrible panic attacks: T45.18 - T45.40.
She agreed that to the extent that she suffered L4/L5 ruptured discs, these were as a result of the assault in September 2009 and that although she had suffered PTSD as a result of the March 2006 incident, her condition was aggravated by the subsequent assault in September 2009: T46.47 - T48.19.
Ultimately, the person who assaulted the Plaintiff in September 2009 was sent to trial, and, in November 2010, the Plaintiff provided a Victim Impact Statement: Ex. A/771 - 772. In that document, she described her life as having "been turned upside down by this incident". (I shall not deal with other matters in the Victim Impact Statement at this point because they are referred to later in these reasons.)
In April 2011, the Plaintiff withdrew from the PhD course commenced in early 2008. She stated, in Ex. A/174, that she had been "forced to stop … due to my mental illness and symptoms. I recall an occasion where I had to stand up in front of a group of students and had a panic attack. I had to flee the classroom and run to the toilet. I cried and had to calm myself down."
The Plaintiff agreed, in cross-examination, that she had withdrawn from the PhD course as a consequence of the sequelae of the assault in September 2009: T46.15 - T46.21.
Despite the assault in September 2009, and even though she had withdrawn from the PhD course in April 2011, in February 2012, the Plaintiff commenced a Post Graduate Criminology Degree, at Monash University. She studied off campus via online, telephone and correspondence until she withdrew from the course on 23 July 2012 (Ex. A/239).
The Plaintiff gave evidence that, as a result of the assault in 2009, she had applied for employment within her field but had withdrawn her application "at the last minute because I know I won't be able to get through the interview": T46.27 - T46.36.
At the date of hearing, the Plaintiff was no longer receiving One Path Income Protection payments, so she had applied for the full disability support pension, which pension was about to start: T28.01 - T28.06. She stated that whilst a number of her medications had changed, she did not agree that her overall condition had improved since she had sworn the affidavit of August 2017: T30.03 - T30.09.
In cross-examination, the Plaintiff agreed that when she made her the Claim in March 2014, she did so by reason of both the initial event in March 2006 and all of the consequences of the event in September 2009, and that it was the whole problem, globally, that had prevented her from ever working again: T48.00 - T48.25.
In answers to questions from the Bench at T54.38 - T55.05, the Plaintiff said: Q: … at the time you left Aspire, whether it was the 25th or 28th of January, did you believe you could work? A. I hoped. I'm not sure that I … I didn't have my faculties about me at all and that's why they asked me to leave, and looking back I see why. In my heart I wanted to return to work, but there were so many triggers for me in society that I had to hide. Q. But I think you accepted from Mr Hanson that you were improving after that time until the events of September 2009? A. Yes. Yes. Q. Is it fair to say that you must have believed that you were capable of doing other work because you actually applied for other jobs? A. Yes. I live in hope all the time. Q. And you did that until September 2009? A. Highly likely, yes, because I'm pretty driven and I wouldn't have wanted to give up without a good fight."
The Plaintiff could not remember whether she had actually applied for any jobs after September 2009: T55.29 - T56.05.

The Trust Deed

As there is no longer any claim made against the Trustee, the structure of the Trust Deed governing the terms of the Fund does not need to be set out.

The Policy

The Policy, in Clause 2, provides a number of "defined terms".
It defined "Date of Disablement" in relation to a disablement claim as "the date on which commenced the most recent period of absence from employment through injury or illness".
Whereas I intend to address the Plaintiff's submissions later in these reasons, I interpolate here, that counsel for the Plaintiff contended, at [22] of the written submissions (in chief) that the "Date of Disablement" was "the date on which the most recent period of absence from employment due to illness or injury commences" and, somewhat inconsistently with what had been pleaded, at Paragraph [24], that: "Importantly, the TPD clause does not require the plaintiff to have ceased work due to illness or injury. Rather, in order to satisfy part (i) of the TPD clause, it is only necessary that the plaintiff became, at some stage within the two year period after she last worked, unable to work because of injury or illness. There is no requirement that the plaintiff (or any 'Insured Member') actually be in employment at the time they become unable to work due to injury or illness - to suggest otherwise would be to render the qualifying portion of the TPD clause ('in relation to an Insured Member who has been in gainful work at any time during the two years immediately preceding the Date of Disablement') otiose. The temporal requirement 'at any time during the two years immediately preceding the Date of Disablement' specifically contemplates that the 'Insured Member' need not be in employment as at the 'Date of Disablement'. Accordingly, it is sufficient that the 'Insured Member' is rendered unable to work by illness or injury, irrespective of whether, absent that injury or illness."
(The first sentence of the Paragraph appears wrong because the definition of TPD is stated to be based upon the Insured Member having been continuously unable to work "because of injury or illness for the TPD Waiting Period". In fact, the only Date of Disablement that had been alleged in the amended Statement of Claim was 25 January 2008 (Paragraph 9 and the particulars of the amended Statement of Claim) and that the Plaintiff had been unable to work because of injury or illness for the TPD Waiting Period (Paragraph 10 of the amended Statement of Claim).)
When asked, in oral submissions, what, in the circumstances of this case, the date of disablement was, counsel for the Plaintiff responded "it is any date … within the two years commencing from 28 January 2008", namely to 28 January 2010: T19.40 - T20.11. He submitted that the date of disablement was "the most recent period of absence from employment": T61.09 - T61.13.
Counsel also submitted that the waiting period, if the last date was 28 January 2010, would expire on 28 July 2010: T21.03 - T21.07.
Counsel for the Insurer disputed that the Plaintiff's construction of the "Disablement Date" should be accepted. He submitted that the "date on which commenced the most recent period of absence from employment through injury or illness, [the Plaintiff's] case is [when] she ceased on 25 or 28 January and has not been back so that must be the commencement of the most recent period of absence": T112.28 - T112.40.
He also submitted that the Policy defined, relevantly, an "Insured Event" in relation to an Insured Member, as including "becoming Totally and Permanently Disabled prior to the Expiry Age for Total and Permanent Disablement Cover".
Under the Policy, "TPD Benefit" was said to mean "the benefit payable by the Insurer in respect of an Insured Member who suffers Total and Permanent Disablement".
The term "disability" was not, in fact, defined in the Policy. However, there was a definition of TPD, which so far as is relevant, states: "… in relation to an Insured Member who has been in gainful work at any time during the two years immediately preceding the Date of Disablement: (a) (i) the Insured Member has been continuously unable to work because of injury or illness for the TPD Waiting Period; and (ii) in the Insurer's opinion (after considering medical and other evidence satisfactory to the Insurer) the Insured Member is unable ever again to work for reward in any business, occupation or regular duties for which he or she is reasonably qualified by education, training or experience; … For the purposes of this definition business, occupation or regular duties means: • full-time business, occupation or regular duties where the Insured Member was working at least 15 hours per week at the Date of Disablement …"
(The Insurer referred to sub-paragraph (a)(i) of this definition as "the Stage 1" enquiry and to sub-paragraph (a)(ii) (set out above) as "the Stage 2" enquiry.)
I shall return to the submissions on this topic later in these reasons.
The TPD Waiting Period was six months.
Under Clause 11 of the Policy, the Insurer agreed to pay a TPD Benefit, as follows: "Benefits - Amount and When Payable 11.1 If appropriate premiums have been duly paid and if to the satisfaction of the Insurer it is established that in respect of an Insured Member an Insured Event has occurred then subject to anything to the contrary arising pursuant to this Policy, the relevant Sum Insured shall become payable to the Policy Owner. 11.2 Death Benefits, TPD Benefits and TTD Benefits are calculated as at the Benefit Calculation Date. Other Benefits are calculated as specifically provided in this Policy."
Thus, the definition of TPD, relevantly, contained different limbs assuming the Insured Member to have been in "gainful work" at any time during the two years immediately preceding the Date of Disablement. If the Date of Disablement was 25 (or 28) January 2008, there was no dispute about this limb having been established. (Indeed, it is beyond argument that the Plaintiff had been in gainful work during the two years immediately preceding the date in January 2008 if that is the Date of Disablement.)
There was no suggestion, in the Policy, that the injury, or the illness, must be work related.
It also seemed not to be in dispute that there was then a further limb required to be established. The Insurer was required to form an opinion, after consideration of medical, and other, evidence satisfactory to it, that the "Insured Member is unable ever again to work for reward in any business, occupation or regular duties, for which … she is reasonably qualified by education, training or experience".

Detailed Chronology of the Plaintiff's Claim vis-à-vis the Defendants

By letter dated 29 April 2014, from the Plaintiff's solicitors to the Administrative Officer of the Trustee, information was sought upon the basis that the Plaintiff had instructed the solicitors to "assist her in applying for total and permanent disablement benefits and/or income protection benefits".
The Plaintiff's solicitors sent another letter, dated 13 May 2014, referring to the earlier letter, requesting the information that had been sought "as soon as possible".
The Trustee responded by letter dated 21 May 2014. It provided much of the requested information and required the completion and return of a number of forms, and the provision, by the Plaintiff, of some additional documents.
On 10 July 2014, the Plaintiff completed the Insurer's "Member's Statement" (Ex. A/138 - 141) which she identified as a "Total and Permanent Disability Claim". In this document, she identified as her injury "L4/L5 Ruptured Discs - [PTSD]" and stated that the injury occurred on "13/3/2006 & 2009", and that it had occurred in a "(1) Bathroom rape [and] (2) Home Invasion". She also stated that she had suffered an illness, being "Acute Lymphoblastic [leukaemia]", "arachnoid mass spine" and "adrenal adenoma" 2006. She stated that on 28 January 2008 she had suffered a "Breakdown. Emotional. Physical inability to perform" and that she had ceased work on 28 January 2008, ticking the box "Can do no work". In answer to the question "Have you, as a direct result of this disability, been unable to perform the normal duties of your occupation", she responded, "Yes". She stated that she would "never" be able to return to work.
In answer to the question "Any other comments that you consider may be relevant to your claim", the Plaintiff replied that: "Due to mix of P.T.S.D. plus multipul [sic] health issues I can never return to work."
The Plaintiff also claimed that from her last day at work, she had been unable to perform her usual duties due to "Breakdown, Emotional" and her "Physical inability to perform".
On the same date, the Plaintiff completed an application for a TPD "VicSuper FutureSaver". She repeated the matters asserted above.
The Plaintiff asserted that her "date of disability" was 13 March 2006. The Claim was said to arise from the following disability or illness: 1. in terms of injury: L4/L5 Ruptured Discs; and 2. in terms of illness: "Acute Lymphoblastic [Leukaemia], Aracnoid [sic] Mass Spine, Adrenal Adenoma"; it also referred to "PTSD", which was attributed to the alleged sexual assault in 2006, and the alleged "physical assault … [and] home invasion" in 2009.
By letter dated 19 August 2014, the Trustee requested information as to "the date [the Plaintiff had] last attended work".
By letter dated 15 October 2014, the Plaintiff, by her solicitors, lodged the Claim with the Trustee for payment of the TPD benefit. The letter enclosed the documents that had been sought by the Trustee.
By letter dated 20 October 2014, the Trustee acknowledged receipt of the Claim; requested further documents from the Plaintiff; stated that it had written to the Employer; and that "once we have received all documentation relating to the TPD claim, we will send your client's claim to our Insurer."
By letter dated 27 October 2014, the Plaintiff's solicitors disputed the need for further information and requested that "you forward the documentation on to the insurer without any further delay".
By letter dated 30 October 2014, the Trustee confirmed that it had written to the Employer to request an "Employer's Statement, which must be completed by the employer and returned to the Trustee before the claim can be submitted to our Insurer".
By letter dated 4 November 2014, the Plaintiff's solicitors threatened to commence legal proceedings.
The Trustee received the Employer's Statement, dated 23 November 2014, relating to the Plaintiff, on about 1 December 2014. In that document, in response to the question "What is the nature of the disability", the answer "Not documented & unable to contact appropriate person from that date" was stated, and that the employee "Chose to leave": Ex. A/153-155.
A letter dated 1 December 2014 from the Trustee to the Plaintiff's solicitors revealed that "the claim has been submitted to our Insurer, AMP, for assessment" and that the Insurer will "deal with you directly to obtain any further information they [sic] require to assess your client's entitlement".
By letter dated 11 December 2014, the Plaintiff's solicitors wrote to the Insurer requesting its acknowledgement of documents and that it was assessing the Plaintiff's claim.
By letter dated 5 January 2015, the Trustee indicated that the Insurer had acknowledged the Plaintiff's TPD claim and had commenced its assessment. The letter stated that "[t]he emphasis in the management of this claim is to medically assess the impact of the claimed condition on your client's ability to continue to work in her occupation or in a suitable position in line with her education, training and experience": Ex. A/202. In addition, further information and documentation was sought.
Thereafter, there was a stream of correspondence passing, in the next months, between the solicitors for the Plaintiff and the Insurer regarding the making of the assessment, requiring, or providing, further documentation, and otherwise, the details of which correspondence it is not necessary to rehearse.
Under cover of a letter dated 17 March 2015, the Plaintiff's solicitors provided some additional documents to the Trustee. A letter of the same date was sent to the Insurer confirming that further documents had been provided.
By email dated 23 March 2015, a claims assessor with the Trustee informed the Plaintiff's solicitors that "your letters dated 17 March 2015, along with additional documents have been referred to AMP for further assessment".
Under cover of a letter dated 29 June 2015, the Plaintiff's solicitors sent to the Trustee, a document, dated 18 June 2015, headed "Statement of Client". In this document (Ex. A/170 - 174), the Plaintiff, relevantly, stated that: 1. She had "suffered assault in the past including rape and also physical assault". 2. Due to the assaults, "I developed post-traumatic stress disorder (PTSD), major depression, anxiety, agoraphobia [and] panic attacks. I also suffer from a ruptured disc in my L4 - L5 and also had an arachnoid cyst in my T4 - T5 discs." 3. She had suffered from acute lymphoblastic leukaemia in 2006. 4. Due to her mental illness symptoms and disabilities, she had "ceased all work in or about 25 January 2008". 5. She "never returned to work due to [her] mental illness symptoms and restrictions, as well as [her] physical conditions and restrictions which affected [her] capacity to work" and that "as a result of [her] mental and physical conditions and symptoms, [she] never returned to any type of employment since ceasing work". 6. She set out the medications which she had then been prescribed. 7. She stated that "[t]here is no way I could ever work in my previous job as a counsellor… All of [the] occupations require me to provide counselling and therapy to the public and people in crisis. Due to my mental and physical conditions and disabling symptoms I am not able to return to any job based on my previous education, training or experience." 8. She had thought about retraining and had commenced a PhD, but was forced to stop "due to [her] mental illness and symptoms". 9. There was no job in her locality that she could do on any regular basis due to her physical and mental health and ongoing symptoms.
By email dated 3 December 2015, from the Insurer to the Plaintiff's solicitors, a request was made for the address of Dr Stillger and the identity of the Plaintiff's then treating medical practitioner.
By letter dated 9 February 2016, from the Insurer, to the Plaintiff's solicitors, a request was made for "information with regard to [the Plaintiff's] treating practitioners at the time she ceased work in April 2008". (There is no dispute that the date the Plaintiff ceased work referred to in this letter is incorrect.)
On 31 May 2016, the Insurer sent what was described as a "procedural fairness" letter to the Plaintiff's solicitors. In this letter, the Insurer stated that "Before a final decision is made, AMP would like to give your client the opportunity to review the documents on which we will be basing our assessment". The letter then identified "the evidence we have obtained throughout the course of our assessment" by way of what might be described as categories of documents. It set out the Policy definition of TPD, identified, wrongly, the relevant date of assessment, and added: "As part of the assessment of your client's TPD claim, we have obtained various medical reports and supplementary information which we consider to contain information that is adverse to your client's claim."
The letter also went on to summarise a number of the documents and concluded: "The above medical information does not reflect that Mrs Folmer ceased work due to the claimed conditions of PTSD, a lower back injury and bowel issues. We consider the relevant date of assessment to be the end of the applicable waiting period, being 18 [sic] July 2008, and it is noted that our assessment has unveiled that Mrs Folmer was not seeking medical treatment at this time for the conditions she claims to have caused her to cease work, and continue to render her permanently unable to return. Please be advised that AMP has not made a decision on your client's claim at this stage. AMP would like to give your client the opportunity to review all the evidence provided and the comments above. Please provide us with your comments and any additional information/evidence which may assist your claim." (Emphasis in original.)
The letter concluded with the comment that should no further information be received within 28 days of the letter, "we will assume your client has no further commentary or evidence to provide and we will proceed with a recommendation on your client's claim to the Trustee of the plan".
(The letter contained a number of inaccuracies which are not necessary to repeat: T116.35 - T117.09.)
In a letter dated 10 June 2016, addressed to both the Trustee and the Insurer, the receipt of which was acknowledged by the Insurer in an email dated 14 June 2016, the Plaintiff's solicitors responded to the "procedural fairness letter", by identifying various other documents and information. (The letter also included a reference to the date the Plaintiff ceased work being Friday, 25 January 2008. As stated, this date varies, as there is a reference, in other documents, to the Plaintiff having ceased work on Monday 28 January 2008. Nothing turns on the two different dates.)
The letter concluded with the statement: "In your procedural fairness letter you say that the medical information you have identified does not reflect that Ms Folmer ceased work due to the claimed condition of PTSD. We respectfully disagree with your view. A proper assessment shows Ms Folmer was seeking medical treatment around the period of assessment and she ceased work due to PTSD. We have referred you to the medical evidence where it is clear that our client was suffering from symptoms of PTSD prior to ceasing work, and when she ceased work in January 2008, her symptoms became worse causing disablement, further these symptoms continued for 3 months after and led her to become totally and permanently disabled as defined. In relation to a lower back injury and bowel issues, we acknowledge that our client suffered from these conditions after ceasing work. These conditions have contributed to her inability to work as well after she ceased work in January 2008. We hope the insurer does the right thing and accepts our client's claim."
By email dated 26 July 2016, addressed to Plaintiff's solicitors, the Insurer requested further information regarding the courses of study in which the Plaintiff had engaged in 2009, and in 2012, as it was "currently in the process of reviewing all of the documentation received on the total and permanent disablement claim for" the Plaintiff.
In an email dated 3 August 2016, the Plaintiff's solicitors provided revised details of the Plaintiff's university studies.
The Plaintiff's solicitors wrote a letter dated 14 September 2016, in which further information was provided to the Trustee. The solicitors also complained of the Insurer's delay, which it described as "unreasonable", in making a decision. The Plaintiff's solicitors also requested the Trustee to ensure that the Claim was accepted within 21 days, or if it was not, that the Trustee should agree to commence proceedings against the Insurer. (It was in this letter that a reference was made to s 52(7)(d) of the SIS Act.)
In an email dated 6 October 2016, under the name of Tee Brejnakowski, addressed to the Plaintiff's solicitors, the Insurer stated that a "negative decision" had been made, which had not been issued, and that he had "reviewed this decision and do not believe that we have enough information to support the decision". He stated that he would "need to research the claim to confirm answers to my questions and concerns prior to making any decision".
The letter went on: "I note that in the decision there is no mention of a report from Dr Stilger [sic] dated 16/01/2015 which states Ms Folmer is TPD. I believe that this needs to be included in our assessment. I am unsure of Ms Folmer's work prior to her cessation. There was a note to suggest she was working for 2 months prior to her cessation. I need to know if this is correct. She needs to have been working for 6 months prior to cessation to be eligible for TPD. I also would like to investigate Ms Folmer's PTSD. As far as I am aware, an incident occurred prior to Ms Folmer's cessation of work, she was then able to obtain work despite this diagnosis. I am of the opinion that she may have been able to get work, however due to the condition of PTSD was unable to sustain her work. I will have our internal doctors review my findings and await their response. Where you will be able to assist is by providing me information around Ms Folmer's employment. As far as I am aware, she was working for two months. Can you please confirm her work and work history. The employer statement has the start date for Ms Folmer as at 18/02/2008 and end date 18/04/2008. I will have my internal doctors review this claim and provide you with a further update. I should hope to hear back from them this time next week at the latest. Once I have collaborated [sic] all of this requested information, I believe a decision will be made."
(There is no evidence about any review of the claim by "internal doctors" of the Insurer, any further investigations that the Insurer actually carried out, or that the results of investigations, if any were carried out, were provided to the Plaintiff's solicitors.)
In a document headed "TPD Final Claim Summary Dated 23/11/2016", sent to the Trustee, the Insurer declined the Plaintiff's claim. In that document, it was said that the date the Plaintiff "was employed by the Employer for a period of two months between 18 February 2008 and 18 April 2008". (These dates had been obtained from a statement provided by the Employer, which the parties agreed was incorrect.)
Although lengthy, it is necessary to repeat a significant part of the document: "When considering the claim, all the evidence available (medical and non-medical) was considered and applied to the terms and conditions on the policy. The following comments are AMP's view of the evidence received and our recommendation to the Trustee is below. AMP recommends that when considering the claim, the Trustees should read all the available evidence in its entirety in conjunction with this summary. The following reports in the table below were reviewed and assessed during the claim assessment. We refer you to the final column whereby we have provided an opinion with regards to whether or not each report supports the member's claim for Total and Permanent Disability (TPD): Date of Report Report Received From Speciality Supports TPD? 27/10/2010 Dr Ross Kirkman Psychiatrist No 23/11/2014 Aspire, Pathway to Mental Health Employers Statement No 01/12/2014 Firths Initial Claim Docs N/A 24/12/2014 Dr Jandranta Stillger General Practitioner No 08/02/2016 CommInsure TPD File No 27/04/2016 Dr Dani Buchanan General Practitioner No

… Conclusion Mrs Folmer advises she ceased work as a result of PTSD and recurrent bowel issues. She has also claimed for a back injury, however this is outside the scope of the assessment as the injury occurred 17 months after she ceased work. There is limited medical evidence to reflect that leading up to her ceasing work, her conditions or the symptoms associated had increased to a point which impacted her function. This is reinforced by the fact that Mrs Folmer maintained her academic studies in Social Work throughout 2008, until ceasing these studies in 2012. Despite ceasing work in April 2008 for symptoms relating to PTSD and recurrent bowel complaints, Mrs Folmer had no Psychological or Psychiatric treatment at this time. It was in fact over two years before she sought professional treatment for PTSD from Dr Ross Kirkman, Psychiatrist, and we note she only attended for two appointments. Further, there exist no clinical entries from either GP to reflect that Mrs Folmer was attending for treatment of either condition of PTSD or recurrent bowel symptoms. Based on the evidence summarised above, AMP considers that Mrs Susan Folmer does not meet the definition of totally and permanently disabled, and accordingly, the claim is declined."

The TPD Final Claim Summary was not provided to the Plaintiff's solicitors but only to the Trustee. (At T76.39 - T76.41, counsel accepted that "it is the decision that was sent to the Trustee and constitutes the decision and the reasons for the decision of [the Insurer] to decline the Plaintiff's claim".)
There, then, followed some further correspondence between the Plaintiff's legal representatives and the Trustee. In an email dated 2 December 2016, the Plaintiff's solicitors referred to: "…clinical notes of Dr Stilger [sic] from 2006 to May 2008 where the Doctor recorded panic, anxiety and reactive depression as diagnoses. The Doctor prescribed her medication to treat psychological conditions. Therefore our client was under regular medical treatment for her psychological conditions when she ceased work and after. Kindly also note Dr Stilger [sic], the treating Doctor of many years certified our client TPD in January 2008."
A copy of the email must also have been provided to the Insurer because Mr Brejnakowski responded by email on 2 December 2016 (Ex. A/248): "Thanks for your email. Please note that Procedural Fairness was issued and you have replied to this letter previously via email. You make note of [the Plaintiff] being under regular medical treatment between 2006 and 2008. The relevant date of assessment is in 2008. [The Plaintiff] needs to be in regular treatment post her last day worked, which was in 2008. This has not been the case. As I mentioned in my previous email and also as Jenna Wood has previously advised you via email correspondence, the earliest date for psych treatment post [the Plaintiff] relevant date of assessment is not until 2010. Lastly, as I have previously mentioned in my below email, AMP has sent its recommendations to the fund (VicSuper). VicSuper will be in touch with you regarding the decision. If you would like a copy of the policy, you need to contact VicSuper."
The Plaintiff's solicitors responded to the Trustee by letter dated 7 December 2016. The letter, relevantly, provided: "We refer to this matter and the assessment of this claim. We enclose herewith copy of email from AMP to Firths dated 2 December 2016. It appears that the insurer has declined our client's claim on the basis that she was not allegedly under medical treatment in 2008. I have reviewed the policy provided by you on 5 December 2016 and have found no reference to a requirement that an insured members needs to be under medical treatment to satisfy the TPD definition. TPD means: … A requirement for medical treatment after ceasing work is not mentioned in the above clauses of the policy. If the insurer has declined our client's claim because it alleges our client did not get medical treatment after ceasing work, it would be wrong at law and its decision will be set aside in Court. In addition, Ms Folmer received medical treatment by her GP in the form of medication. Kindly refer to our letter to the trustee dated 10 June 2016 for details. We advise again that our client's TPD claims with AustralianSuper and Tasplan were all accepted with the same evidence provided to VicSuper and AMP. The evidence speaks with one voice that our client is TPD. As you can appreciate, there is clearly unreasonable delay in finalising the assessment of this claim since it was lodged on 15 October 2014. There is no reason or excuse that we can envisage that would permit the insurer with your acquiescence to take over two years and two months and decline the claim if it declined it. Further, if the insurer indeed declined our client's claim, it breached its duties by not providing our client with a procedural fairness letter after it was reassessed by a different case manager from AMP."
By letter 16 March 2017, the Trustee declined the Plaintiff's claim, stating that the Plaintiff did not meet "the definition of Total and Permanent Disablement". As there is no claim made about the Trustee's decision, it is unnecessary to refer to its reasons further.
In a manner not fully made clear by the evidence, the Insurer's decision became known to the Plaintiff's solicitors.
In a letter dated 27 September 2017, from the Insurer to the Plaintiff's solicitors (Ex. A/256 - 260), sent under cover of an email of the same date, it was noted that "although the Trustee had informed your client that we had declined this claim, reasons for our view had not been provided. This letter seeks to inform your client about why we declined this claim".
The letter, continued: "We have reviewed and considered a large volume of material either submitted to us or obtained by us during the assessment of the claim. This letter is not intended to be an exhaustive or 'judicial' explanation of our reasoning; nor will it attempt to refer to all of the material considered in the assessment of the claim. The fact that a document may not be specifically referred to herein does not indicate that it was not considered. We note that a list of the material before us was provided to you with our 'procedural fairness' letter, prior to the declinature of the claim. The facts of the claim … We understand that your client's claim is based upon psychological symptoms (variously characterised by her as stress, depression, anxiety and post-traumatic stress disorder) and orthopaedic symptoms (variously characterised by her as L4/L5 rupture, an arachnoid mass in the thoracic spine, disc pathology and sciatic pain). Definition … Principles The definition requires that your client be continuously unable to work because of injury or illness for 6 months (the first limb requirement). We understand that your client asserts that she was so unable from 25 January 2008, being the relevant Date of Disablement, and that she ceased work with Aspire due to her claimed medical condition(s). The definition also requires that, in our opinion, your client be unable ever again to work for reward in any business, occupation or regular duties for which he or she is reasonably qualified by education, training or experience (the second limb requirement). The time at which we must assess the second limb requirement is at the end of the 6-month inability to work, as set out in the first limb requirement - that is, as at 25 July 2008. We must be satisfied that the prognostic character of her condition has been established as at 25 July 2008. Unexpected subsequent deterioration, or subsequent illnesses or incidents, are not relevant to our assessment of the claim. We accept that evidence created after July 2008 will be relevant, to the extent that it is pertinent to your client's condition and prognosis as at July 2008. Our reasoning The first limb requirement The medical evidence available to us is strikingly silent at and about the time that your client ceased work with Aspire (25 January 2008). We note that: • your client's medical history indicates: o depression in 2000; o orthopaedic pain in 2001 due to a motor vehicle accident; and o leukaemia and PTSD in 2006, although we have not seen the primary medical records in relation to these conditions; • in April 2007, the clinical records of Dr Stillger (treating GP) note that your client was 'cutting herself' and engaging in 'self harm', 'having flash backs' and 'not remembering doing things', although she was said to be 'coping well'; • after April 2007, your client does not appear to have consulted Dr Stillger, or any other doctor, until 11 February 2008, when she saw the GP with respect to sweaty episodes and a menopause check. She was, at that time, taking antidepressant and anti-anxiety medication (Lovan and Kalma); • your client next saw Dr Stillger in May 2008, first with respect to diagnostic imaging (apparently because her mother had suffered a brain haemorrhage), and then in relation to a tooth abscess, thyroid function tests and routine chemistry. It was noted that she was doing a Ph.D. and looking after her mother. She reported being better with medication (which may have been a reference to Kalma, which she was again prescribed in May 2008). Our view is that there is no medical evidence to suggest that your client was unable to work because of injury or illness in January 2008. The medical evidence does not show that your client was reporting any significant symptoms or consulting any doctor in relation to her claimed condition(s) at or about January 2008 - let alone that any doctor considered her unable to work. It is therefore our view that the first limb requirement is not met. The second limb requirement The medical evidence indicates that, in and after July 2008, your client reported panic attacks, agoraphobia, and increasing panic, all of which were attributed by her medical practitioners to a temporary stressor, being a Court trial in which your client was involved. Importantly: • there is no discussion by any doctor at or relating to that time of the impact of her symptoms upon her capacity for work; and • there is no suggestion by any doctor at or relating to that time that her symptoms were expected to be permanent, rather than being a temporary reaction to the Court trial. By March and July 2009, your client was described in Dr Stillger's clinical notes as 'good at present' and 'well', and her panic attacks were being controlled by Ativan. On 9 September 2009, your client suffered an assault by a former partner, which resulted in fracture to her ribs and injuries to her neck and back. The pattern of the medical evidence suggests that the assault exacerbated her psychological symptoms. The medical evidence in 2011 specifically links your client's then back symptoms to the assault in 2009, and notes that the assault had caused her to be psychologically distributed (see Report of Dr Watson dated 15 March 2011). In 2011, your client was found to have developed an arachnoid cyst, which led to an increase in orthopaedic pain. The cyst continued to be discussed and treated throughout 2013. In 2013, it is noted that your client's mental health was comprised by ongoing harassment by her former partner. We note that your client has provided her own analysis of her condition in a Victim Impact Statement in relation to the assault incident, apparently prior to the sentencing of her former partner in September 2010. Your client comments that: • four years earlier, she had begun taking anti-depression tablets, but had stopped taking such medication at the time of the assault; • after the incident, she needed to go back onto the medication (Lovan) and to double the dosage; • prior to the assault, she had suffered from anxiety, but had stopped taking medication for same; • since the incident, her anxiety was worse than it had ever been and she had again begun taking medication for it; • at the time of the assault she was 'prescription medication free'; • as a result of the incident, she was experiencing terrible panic attacks, had been unable to sleep properly, suffered from nightmares, and would wake up screaming; • she would not go anywhere unless she had to, which is implied to be the result of the incident; • deterioration in her mental health, resulting in the suspension of her university studies, also followed the incident; and • she was now unable to attend employment interviews without breaking down and crying, which is implied to be attributable to the assault. It is our view that the evidence does not reasonably justify the formation of an opinion that, as at July 2008, your client was unable ever again to work for reward in any business, occupational regular duties (as defined). It is our view that: • there is insufficient basis for a conclusion that the necessary adverse prognosis existed as at 25 July 2008; • your client's orthopaedic issues, as identified in her claim documents, are substantially attributable to the assault in September 2009, which is after the date for assessment of the claim. Those issues are therefore not relevant to our assessment; • your client's mental health issues have been exacerbated by the assault in September 2009 and such deterioration is also not relevant to our assessment of the claim; and • we therefore do not form the opinion, and are not satisfied, that your client was, at 25 July 2008, unable ever again to work for reward in any business, occupation or regular duties (as defined), and we conclude that the second limb requirement is not met. We trust that this letter provides an explanation of our declinature of this claim."
(Counsel for the Plaintiff disputed that the letter dated 27 September 2017 constituted the reasons for the Insurer declining the Plaintiff's claim given in November 2016: T81.06 - T81.08.)
On 6 November 2017, the Plaintiff's solicitors sent, by email, an affidavit, sworn 26 October 2017, of the Plaintiff, to the Insurer.
Under cover of an email dated 8 January 2018, the Plaintiff's solicitors sent to the Insurer, a copy of a letter dated 2 January 2018, from Dr Stillger, which stated: "In my opinion [the Plaintiff] had ceased work as a direct result of her significant mental health illness as noted from April 2008."
In an email of the same date, but sent a short time later, the Plaintiff's solicitors requested the Insurer to "reconsider its decision in light of the evidence served post declinature".
In a letter dated 16 February 2018, addressed to the Plaintiff's solicitors, which was described as the second decision (Ex. A/271 - 276), the Insurer referred to a number of submissions in response to the reasons set out in the letter dated 27 September 2017 and identified the additional documents that had been received since that letter, being the affidavit sworn 26 October 2017 of the Plaintiff, and the two reports, one dated 1 December 2017 and the second dated 2 January 2018, from Dr Stillger.
The letter went on to identify submissions, namely that "AMP has overlooked medical consultations undertaken by [the Plaintiff] between April 2007 and 11 February 2008"; that "insufficient regard has been given to the Medical Attendant's Statement (MAS) of Dr Stillger"; and that "the [Victim Impact Statement] is erroneous and should not be relied upon". Reference was also made to the letter of 27 September 2017 and to the reference to "the first limb requirement" and "the second limb requirement" in that letter.
It also set out the reasons for the conclusions identified and provided an explanation for what had been written. It stressed that whilst there might be documents (being the Medical Attendant's Statement) that included statements from Dr Stillger that, in 2008, the Plaintiff "was unable to continue working and had to cease all work", and that "these statements favour a positive conclusion regarding the first limb requirement (as to Dr Stillger's recent reports) … [i]t remains our view that the more compelling evidence is to be found in the contemporaneous notes, which do not demonstrate any incapacity for work in 2008".
In relation to the second limb requirement, the letter noted, again, that the Medical Attendant's Statement had been created more than 6 years after the date of the assessment of the claim, and although it may be relevant to the extent that it identified the Plaintiff's condition and prognosis, as at July 2008, "assertions which do not pertain to the date for assessment may not be relevant".
The letter dealt with the Victim's Impact Statement stating that it should not be disregarded by reason of an error made in that document (as to the taking of medication). The Victim Impact Statement was said to provide "general narrative" of the Plaintiff's condition at the time and was likely to be more accurate as to the Plaintiff's condition as referred to therein.
The letter concluded: "We emphasise that our opinion is not based upon a contention that your client had ceased taking medication entirely, either at July 2008 or prior to September 2009; nor do we deny that she experienced mental health symptoms at these times. Our conclusion is merely that we are not satisfied that, as at July 2008, your client was unable ever again to work for reward in any business, occupation or regular duties for which she was reasonably qualified by education, training or experience. We note that your client makes the assertion that, even if the assault had not occurred, she would not have been able to work. However, while we acknowledge your client's statement of opinion, our analysis of the entirety of the material leaves us unsatisfied that the second limb requirement is met. We trust that this letter explains our view in relation to the further submissions which have been made on behalf of your client."
Under cover of a letter dated 19 March 2018, the Plaintiff's solicitors sent to the solicitors acting for the Insurer "a copy of our letter to Dr Stillger of 28 February 2018 and her response of 14 March 2018".
Under cover of a letter dated 21 May 2018, the Plaintiff's solicitors forwarded to the solicitors acting for the Insurer, Clinical Notes of Spencer Clinic (4 pages) and Clinical Notes and Report dated 28 September 2008 from Michael Marriott, Psychologist (47 pages). The solicitors requested the Insurer to reconsider its decision.
By letter dated 1 June 2018, the Plaintiff's solicitors withdrew the request made for further reconsideration.

The Medical Evidence

The medical evidence relied upon was all provided to the Insurer by the Plaintiff's legal representative. There is no evidence that the Insurer, itself, either sought, or obtained, any report from its own, or an independent, medical practitioner. (This is despite a statement in the letter dated 6 October 2016 that it would "have my internal doctors review this claim".) There is no evidence that the Trustee did so either. The Insurer did, however, seek other reports from the Plaintiff.
It is necessary to start with the relevant parts of the Plaintiff's Patient Health Summary covering the period 3 May 1999 until 24 February 2016 (Ex. A/448 - 484). It is not necessary to set out all of the numerous consultations made during this period, or the array of medical complaints made by the Plaintiff, which do not pertain to the claim that she made for TPD.
Relevantly, in summary, this document provides: 1. 14/07/2000 - prescribed Cipramil (used to treat depression). 2. 21/07/2000 - prescribed Diazepam (used to treat anxiety); Cipramil ceased. 3. 14/03/2006 - sexual assault done with police SAIK (Sexual Assault Investigation Kit). 4. 15/03/2006 - post assault trauma - prescribed Lovan capsule (medication that is used in the treatment of, inter alia, depression), Ativan capsule, Pariet capsule, Stemetil tablet. 5. 22/03/2006 - left wrist, lower back pain and new right hip pain, tinea on feet starting now; Using friend psychologist - dreams happening at present. 6. 31/03/2006 - crying re what has happened today with police investigation into her case. 7. 05/05/2006 - long discussion re treatment for PTSD. 8. 16/05/2006 - Medical certificate not to plead and not to go to court. 9. 08/08/2006 - Letter created; unwell to attend court. 10. 02/04/2007 - phone call - coping well, being helped with Greg Richardson - having flashbacks, cutting herself at present - seeing Sue - ongoing court proceedings. 11. 03/04/2007 - self-harm, not remembering doing things, flash backs with past trauma, going through court, panic, had hang over effect; KALMA tablet was reduced from 1 tablet 1.00 mg to 0.25 mg; Lovan capsule changed from 1 daily m.d.u. (to be used as directed) to 2 daily m.d.u.; Pariet capsule and Stemetil tablet ceased. 12. 12/04/2007 - court yesterday - vomited; Stemetil tablet prescribed. 13. 11/05/2007 - KALMA prescription. (It is medication that is used to treat anxiety and panic attacks.) Repeated 10/07/2007 and 20/12/2007. 14. 26/07/2007 - Pariet tablet (again) prescribed. 15. 20/12/2007 - KALMA tablet was increased from 1/2 tablet 0.25 mg b.d. (twice daily) m.d.u. to 1 tablet t.i.d. (three times daily) p.r.n. (as needed). 16. 11/02/2008 - sweaty episodes. Lovan prescribed. KALMA prescription repeated. 17. 07/05/2008 - Diagnostic imaging requested: CT Brain - mother with brain haemorrhage. KALMA prescription repeated. 18. 07/07/2008 - Panic attacks worse - agoraphobia - trial started. KALMA prescription repeated but higher dosage prescribed. Lovan prescription also repeated but higher dosage prescribed. 19. 21/07/2008 - Court today - tearful. Review next month - will see Mike Marriott. 20. 19/09/2008 - reference made to medications "for depression" and "working with mental health"; long discussion re court "coming up". 21. 01/10/2008 - Spoken with re court re assault today. Going to appeal court. KALMA again prescribed. Increased dosage. 22. 2/12/2008 - KALMA again prescribed. Prescribed again on 18/12/2008. 23. 05/02/2009 - Prescribed Diazepam. 24. 18/03/2009 - Good at present. Again prescribed Diazepam. Repeated on 09/04/3009; 27/04/2009; 13/05/2009; 25/06/2009. 25. 16/07/2009 - KALMA and Diazepam ceased. 26. 10/09/2009 - Assaulted by ex-boyfriend - rib fracture 6th on right side; Difficulty breathing, has restraining order out on him. 27. 22/09/2009 - Now pain, back and neck. Seeing psychologist re assault. KALMA prescribed. Long discussion re medication. Ribs healing well. Neck and back pain post trauma. Happy with counselling with victims of crime - not suicidal. 28. 22/10/2009 - Increased with KALMA and panic attacks. 29. 05/11/2009 - Ribs healing well. KALMA tablet again prescribed - Dosage decreased. KALMA prescription repeated on 31/12/2009. 30. 04/03/2010 - Insomnia - Tamazepam prescribed. 31. 18/03/2010 - Panic attacks and depression noted. "Letter created re Certificate work". 32. 15/04/2010 - Doing well - reducing the KALMA now. 33. 07/05/2010 - Panic attacks. Diazepam prescribed. 34. 08/06/2010 - Had psychiatrist appointment but did not have courage to go, asked to get another appointment. Did go to psychologist - 3 different persons that helped her … Takes KALMA sparingly, some days without, some days 2 - 3 tablets; No suicidal thought or plan; Diazepam ceased; KALMA again prescribed but reduced. 35. There is no record of attendances between 08/06/2010 and 05/02/2013. 36. 04/03/2013 - Diazepam again prescribed. 37. 27/06/2013, 22/07/2013, 01/11/2013 - Lumbar back pain recorded. 38. 13/08/2013 - Major stress with friends of violent ex-partner has moved in next door that has caused aggravation of PTSD. 39. 04/09/2013 - Requested diazepam for post traumatic disorder. 40. 09/09/2013 - Psychologist dealing with PTSD aggravated by ex-partner's new partner harassing her while shopping. Has taken out AVO, currently being challenged. Prescribed diazepam. 41. 30/09/2013 - Back under psycho-therapy following abuse from ex-partner whilst shopping with mother. Solicitor is helping with AVO. Reason for visit: Depression reactive. 42. 22/10/2013 - Major stress with solicitor advising her not to pursue the AVO. Now served with costs. Not advised that this could happen. Diagnosis - Bipolar affective disorder. 43. 30/12/2013 - Reason for visit PTSD - Diazepam prescribed. 44. 11/02/2014 - Depression reactive. 45. 21/02/2014 - Seeing Aspire which is helping her mood. Happy with situation at present. 46. 28/03/2014 - Recent death of dog - otherwise coping well - review medication. 47. 11/04/2014, 06/06/2014 - Diazepam prescribed. 48. 08/07/2014 - Chronic post-traumatic stress disorder. 49. 01/09/2014 - Patient generally well. Diazepam prescribed. 50. 01/10/2014 - Dr Stillger - forms for insurance to be done. Diazepam prescribed. Agoraphobia - not able to work since 2008, assault 2006. 51. 16/01/2015 and 06/02/2015 - Dr Stillger - Letter written to UHG insurance. Referral letter - standard. 52. 03/02/2015 - Neurosurgery next week (Thoracic surgery). 53. 12/05/2015 - Dr Stillger - Forms filled for her insurance company and TDR today. 54. 01/07/2015 - Back going well - able to walk well - pain better. 55. 20/07/2015 - Prescribed diazepam tablet 4 daily for anxiety. (Repeated on 27/07/2015.) 56. 29/07/2015 - 6 days ago had feeling of tear - Severe pain in area of spinal surgery and radiation in right shoulder blade - Taken to DEM by ambulance last night and sent home. 57. 04/08/2015 - Back pain better after jarring episode post moving house. Filled forms for her insurance company.
There are other relevant medical records which form part of Ex. A: 1. A report dated 13 August 2006, being a Critical Care Discharge Summary, refers to the Plaintiff suffering PTSD and acute lymphoblastic leukaemia "with work related stress and loneliness". 2. A report dated 28 August 2006, from the Spencer Clinic, refers to the Plaintiff having been self-medicating and drinking to excess. 3. The lengthy and detailed report, dated 28 September 2008, from Michael Marriott, the Clinical and Forensic Psychologist to whom the Plaintiff had been referred many years earlier has been identified. The Plaintiff had consulted with Mr Marriott in person on that date, after being referred by Dr Stillger on 7 July 2008. The report stated: "Current circumstances Ms. Folmer is presently single and living alone in Burnie. She is a full time PhD student in Social Work at the University of Tasmania. She has completed a BA degree at the University of Tasmania, and has a Bachelor of Social Work and Master of Social Work degrees from Monash University. She has worked as a professional social worker in Tasmania, Victoria and New South Wales. Her mother and stepfather live in Wynyard. Her father died in the mid-nineties. She has two sisters, one living in Western Australia and the other locally in Tasmania. Personal Background … A series of upsetting events occurred. Her father died unexpectedly during surgery, her best friend died of a brain tumour, she found she was being bullied and harassed at work, and someone shot one of her dogs, a six-month-old Border Collie, at her home in Brickport Road, Burnie. Ms. Folmer began suffering panic attacks and was referred to me by Dr. Robert Parkes, Consultant Physician, and first seen on 24/08/00. At the time she was employed as Community Liaison Officer with Disability Services. She complained of having frequent panic attacks and was tearful, waking early, and had little appetite. My diagnosis was Panic Disorder and secondary Adjustment Disorder with Depressed Mood. She was finding most anti-depressant medications were giving her intolerable side-effects but she persevered with cognitive-behavioural strategies for controlling anxiety and gradually improved. She was assisted by a change of job and her concurrent acceptance into social work at Monash University provided a boost for her. Ms. Folmer was referred to me for counselling on 26/07/02 by her employer, Centrelink. She had become tearful during a training session following the discovery that her partner Paul (who worked at Centrelink) was having an affair with another Centrelink employee, Julia. Ms. Folmer was only seen on two occasions in 2002 and cancelled a third appointment due to other commitments. As history has shown, her distress was justified as Paul broke off their five-year defacto [sic] relationship and he is still with Julia. I did not see Ms. Folmer again until 2008. She has advised me that she took a position in Muswellbrook, NSW, after the split with Paul. From there she spent a year working in Sydney and then returned to Tasmania briefly before taking up a position with Bengido TAFE College and then a job with the Korrumbara Mental Health Service based in Warrigal, Vic. … Psychological Adjustment As noted above, Ms. Folmer developed quite severe Panic Disorder in 2000. Prior to that she had attempted suicide and had been admitted to a psychiatric unit at age 14. She had abused illicit drugs and alcohol and had possibly been on the verge of anorexia nervosa. She reported having been diagnosed with leukaemia in about 2005 in Victoria. She was treated with oral chemotherapy and a range of medications to stop vomiting and reduce nausea. She is aware that this treatment can produce a depressive reaction. At the time of her motor vehicle accident and alleged assault in Warrigul she was taking Lovan (antidepressant) Ativan (anxiolytic), Ducene (anxiolytic), and Stilnox (sleeping tablet) in addition to her leukaemia medications. Since her alleged assault Ms. Folmer reported having twice attempted suicide. Her first attempt occurred approximately three months after the event when she took a large overdose of her prescription medications with alcohol. She had two days in ICU at the North West Regional Hospital and was assessed by Dr. Sandra Davies, Psychiatric Registrar. About a month later she found herself in Spencer Psychiatric Clinic and cannot recall the circumstances. Her sister has told her that she was trying to cut her wrists and was probably drunk and had overdosed on her medications. She saw Dr. Davis again and was allowed to leave hospital after 24 hours. Subsequently Ms. Folmer has engaged in a number of self-harm activities. She said she can recognise a negative monologue type of chatter in her head. She then hurts herself to stop other pain. She has starved herself, cut herself, drunk to excess, and taken too many of her prescribed pills. She admitted that she has had a longstanding problem with alcohol. She tends to drink until she passes out. This normally takes about two bottles of chardonnay. It should be noted that her medications for the treatment of anxiety will create a multiplier effect with alcohol and she would feel very drunk after 16 standard drinks with Ativan and Ducene in her system. At present Ms. Folmer's family members and close friends are providing a 24-hour safety net around her so that she does not have an opportunity to engage in further acts of self-harm. Ms. Folmer has complained of memory impairment since the day of her motor vehicle accident. She said her forehead hit the steering wheel. She now struggles with her university studies and has to read things repeatedly and make notes to get sense from what she has read. She keeps a diary of everything she has done, has a whiteboard in her lounge and several calendars with things written on them. (She has failed to attend my appointment on one occasion because she simply forgot.) … Opinion Ms. Folmer is an emotionally fragile individual with a troubled life, history of sexual abuse, substance abuse, and anxiety disorder. Her life was further complicated by a cancer diagnosis around 2005, and the treatment for this reportedly has the potential to cause depression. Her complaint of gradual memory deterioration after her motor vehicle accident is consistent with the effects of hypoxic brain injury. This can result from the inhalation of carbon monoxide (exhaust fumes), a thoracic injury (e.g., pneumothorax which reduces the ability to breath), or respiratory arrest/depression (e.g., due to excessive alcohol and benzodiazepine intake). Her memory impairment is unlikely to be emotionally based as her day to day functioning is reportedly still substantially impaired as well as her memory of a traumatic serious of events. It is unlikely that her head striking the steering wheel caused her memory impairment as this would have resulted in posttraumatic amnesia which was of instant onset. Ms. Folmer remains convinced that she was sexually assaulted by Victoria Police. She certainly sustained injuries which were noted by her treating doctor. She has exhibited regular self-injury behaviours since she was charged with making a false complaint. In the event that she is convicted, I think it would be psychologically inappropriate for her to be placed in police custody. She is likely to become desperately hysterical and suicidal if this occurs. A more appropriate and humane approach would be to have her admitted as a secure patient in a psychiatric unit until such time as she could be transported by security staff to a forensic mental health facility. In my view she meets the criteria for an Order under the Mental Health Act in that she currently suffers from a mental illness (Panic Disorder, Major Depression), and she presents a significant risk of self-harm." 1. A Medical Certificate dated 10 September 2009, from Dr Stillger states that the Plaintiff "will be unfit for her community ordered work from 10/09/2009 to 10/10/2009 inclusive" as she is "recovering from fractured ribs following an unprovoked assault". 2. A report dated 22 September 2009 from a radiologist (Dr R Bodley) to whom the Plaintiff was referred for a C & L Spine & L Ribs X-ray, commented: "Increasing neck and back pain following trauma. … I cannot see any significant abnormality in the cervical or the lumbosacral spine. Alignment in the lumbosacral spine is slightly straightened with loss of the normal lordosis. This [is] probably a reflection of pain. … I cannot see any other significant abnormality in the spine. … No significant abnormality is seen in the heart, lungs, bones or soft tissues apart from healing fractured right 5th and 6th ribs postero-laterally. I cannot see any left rib fractures." 1. A report dated 23 November 2009, from a Surgical Registrar at the Outpatient Clinic at the Department of Health and Human Services, addressed to Dr Stillger, identifies "an element of anxiety and psychological factors". 2. A Medical Certificate dated 18 March 2010, from the Burnie General Practice states that the Plaintiff "is unfit for work from Thursday, 18 March 2010 until Thursday, 8 April 2010 inclusive due to a medical condition". 3. A report dated 29 March 2010, from the Burnie General Practice to Dr Ross Kirkman refers to the Plaintiff having suffered "from depression & panic attacks for 2 years". 4. A report dated 27 October 2010 (Ex. A/296 - 300), sent to Dr Stillger from Dr Ross Kirkman, Consultant Psychiatrist, reveals that the Plaintiff: "[C]eased work about 4 years ago. She didn't feel she was in a fit state to work and decided to do more study while she tried to get better. She describes being anxious, tearful, panic attacks, memory problems. She is agoraphobic and is increasingly housebound, particularly in the last 6/12." Dr Kirkman refers to the Plaintiff's inability to "get work locally as it was a rather public case and ran for a week in the Advocate. Her behaviour deteriorated…". He also stated that following her conviction, "she was not able to return to work due to the criminal conviction". In relation to work, Dr Kirkman also stated: "She really needs to try and get back to work and I wonder whether she can do this successfully locally considering the damage to her reputation that has occurred. I doubt she can work as a Social Worker but it may be that she could work in the welfare area or start a new career. Working would be the most effective thing she could do to recover from her agoraphobia as it would force her to leave the house…" It is in this report that Dr Kirkman, based upon an initial consultation, identifies a diagnosis of borderline personality disorder. 1. A subsequent report of Dr Kirkman dated 4 October 2011 (Ex. A/321) refers to him having seen the Plaintiff but having "no record in those consultations of an assault occurring in 2009" and that the Plaintiff was "very much concerned with the weighty matters of the previous four years alluded to in my first consultation". 2. A Job Capacity Assessment Report submitted 30 December 2010 to Department of Human Services (Centrelink) (Ex. A/309 - 316) refers to the Plaintiff presenting "with a history of chronic psychiatric symptomology, for which she advised being diagnosed as Borderline Personality Disorder". She also reported as being "diagnosed with Irritable Bowel Syndrome at the beginning of this year post colonoscopy and medical intervention". The Plaintiff's "impairment" was said to be a psychiatric impairment with a "serious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgment, thinking or mood". In relation to her employment, it was noted that the "history of significant psychiatric symptomology…may compromise her judgment, thinking, decision making and mood. Additionally [her] capacity to cope effectively with stressors, interpersonal conflict and workplace pressures may be compromised". The impact on employment was said to be "compromised as a result of current legal limitations, as such, support is likely to be required to identify and pursue suitable job options". (To the extent that it is relevant, the report noted that her "fractures and crush injuries, musculo-skeletal disorder and IBS are not considered to reduce her work capacity, but may compromise her ability to sustain physically demanding duties". Examples of work that she could perform included "light semi-skilled" work such as receptionist or clerical duties. However, later, it was stated that "Due to the severity of [her] psychiatric disorder and its continued negative impact on her function, it is assessed, without access to ongoing vocational support and interventions, [she] may have difficulty building her work capacity above the 0-7 hours per week level" although, with "a referral to an Employment Support Service provider… and with ESS support, [she] may be capable of building her work capacity to the 8-14 hours per week level".) The Job Capacity Report identifies the Plaintiff's Work Capacity, but in each case limits her capacity to either "0 - 7 hours per week" or "8 - 14 Hours per week with intervention": Ex. A/313-314. 1. A Medical Imaging Report (given in August 2013) reveals: "There is an anterior displacement of the thoracic cord at the level T4-5 by an arachnoid cyst and associated focal posterior indentation of the cord at the level T4… [it] does not show any significant change in appearances compared to previous MRI dated 8 April 2011…". 1. A report dated 4 March 2014 from the Royal Hobart Hospital refers to "T4 to T5 level arachnoid cyst with thecal sac compression" and that her symptoms had been stable since the last review three months before. 2. A report dated 18 June 2014 from Dr K Koshy, a Consultant Neurologist, records that the Plaintiff had been referred with symptoms of bilateral paraethesias involving both her upper limbs for the last couple of years. The report refers also to the Plaintiff having had "intervertebral disc prolapse affecting the L5-S1 level since 2009 along with an arachnoid cyst of the mid-thoracic spine at the T4-T5 level producing anterior displacement of the spinal cord in this region". The report also records that "a focussed examination of the upper limbs revealed no significant wasting, weakness, or sensory dysfunction bilaterally. Examination of the lower limbs again revealed no significant change in tone, bulk or power, except for slightly exaggerated deep tendon response at the knees and ankles with equivocal plantar responses bilaterally". 1. A Medical Questionnaire, dated 4 August 2014, completed by Gerard Moore, Mental Health Nurse, refers to the Plaintiff being "unable to work to date and for the present is unable to work. Is keen to return at some time in the future but this will be subject to successful outcomes …surgery and psychotherapy". 2. A report dated 26 August 2014 from Mr A M Erasmus (Neurosurgeon) records that the Plaintiff was then awaiting neurosurgery for a thoracic cyst sub-arachnoid shunt and that she was still experiencing inter-scapular pain. It then stated: "[S]he has also developed significant set of symptoms in terms of headache, pain in the neck with pain radiating behind the eyes. She also has spontaneous jerky movements of the hands, especially when trying to work on her iPad and has noticed that this has become an increasing problem…". 1. A report dated 22 October 2014, from Dr K McLean, Radiologist, under cover "MRI Thoracic Spine" stated: "The cord at the level of T4 is indented by CSF density posteriorly and slightly flattened. This would be consistent with a dorsal arachnoid cyst. The differential does include ventral cord herniation but no suggestion of kink or herniated cord is identified… MRI would suggest an arachnoid cyst of approximately 20 - 30mm in length." 1. Dr Stillger provided a "Claim for Total and Permanent Disablement Benefits (Medical Attendant's Statement)" dated 2 October 2014 (Ex. A/330-331), in which she referred to, amongst other conditions, the Plaintiff having suffered acute lymphoblastic leukaemia in 2005 and PTSD in 2008. She went on to state that the Plaintiff could not perform "light/alternative or modified duties" "at present or in the future". It then stated that the Plaintiff "[h]as intensive therapy with Aspire program" and that she "has significant health, physical and mental issues which prevent her from working". Dr Stillger also stated that in 2008, the Plaintiff had "to cease all work. Has had 2 years of rehabilitation and alternate duties. Unable to continue with this". (The "alternate duties" were not identified.) Finally, she provided a "Permanent Incapacity Medical Certificate" dated 2 October 2014 (Ex. A/332). 2. Dr Stillger completed a number of questions in a letter dated 5 January 2015 (Ex. A/335-336) in which she identified a number of physical limitations from which the Plaintiff was suffering, and added, as "additional restrictions", the reference to "Anxiety and panic in public areas". A letter dated 16 January 2015 (Ex. A/337-338), repeated a reference to PTSD following an assault and ongoing medication. She described the conditions from which the Plaintiff suffered as "chronic". 3. Dr Stillger provided another Permanent Incapacity Medical Certificate dated 30 November 2017, in which she stated: "I understand Ms Folmer ceased all work because of illness/ injury and has been continuously absent from all work since. In my opinion on the balance of probabilities Ms Folmer is unlikely to ever again be able to be gainfully employed in her usual occupation, or any other occupation for which she is reasonable suited by education, training or experience." 1. Dr Stillger provided a report dated 1 December 2017 to the Plaintiff's solicitors in which she stated: "1. According to our records, since October 2014, I have seen Ms Susan Folmer 31 times. 2. She continues to suffer with persisting post thoracic surgery pain, and severe anxiety and depression with frequent panic attacks. 3. In summation she has significant health issues which are affecting her daily life severely. Her persistence post-operative pain has been challenging to control, to give her some quality of life. She has regular review with her neurosurgical team. She has also needed further psychiatric care with her increasing panic disorder and depression. She has limited endurance and concentration as a direct result of her on going debilities. 4. She currently has a diagnosis of persistent pain post Thoracic spine surgery, T4/5 laminectomy and marsupialisation of her arachnoid cyst, Panic disorder, Depression and PTSD. 5. In my opinion, since 2008, she does not have any real chance of returning to permanent or regular employment based on her education, training and experience." 1. Dr Stillger provided a report dated 2 January 2018 to the Plaintiff's solicitors in which she stated: "In my opinion Ms Susan Folmer had ceased work as a direct result of her significant mental health illnesses as noted from April 2008." 1. Dr Stillger provided another report dated 14 March 2018 to the Plaintiff's solicitors in which she stated: "1. I was caring for Ms Folmer as her general practitioner from January 2008 to September 2009. 2.a. Ms Folmer was suffering from panic attacks, increasing depression, agoraphobia and severe anxiety. b. I had commenced treating her for these conditions in 2006. c. Treatment consisted of referral to a psychologist, a mental health care plan, comprehensive blood test investigations, CT scan of her brain, medication and regular review. d. To the best of my knowledge she was compliant with treatment. e. Her conditions did not improve in the period of January 2008 to September 2009. f. Her conditions did not resolve in the period of January 2008 to September 2009. g. Her conditions prevented her from any work during this time. h. Ms Folmer is still suffering from these conditions."
It was not suggested to the Plaintiff, in cross-examination, that the type, and level, of medication with which she was prescribed, or which she was taking, was not required by her. There was little information provided to the Insurer, or evidence given in Court, about the effects of the medication that the Plaintiff was taking at, or about, the time she ceased working in late January 2008, and late July 2008, or subsequently, and what effect, if any, the level of medication had upon her capacity to work for reward in any business, occupation, or her ability to perform regular duties.
(I have previously referred to the report dated 28 September 2008 of Mr Marriott to which some reference to the side-effects of some of the medication is made.)
There was no evidence concerning whether, and if so, for how long, the Plaintiff would be likely to have to take the medication, if at all; whether the level of medication was likely to change if she did continue taking it, or if she were to stop the medication, what effect, if any, it would have on her capacity to work for reward in any business, occupation or to perform regular duties.
Nor was there evidence of the effect on her behaviour, which might be material to her prospects of being able to work for reward in any business, occupation or to perform regular duties. Indeed, all of the medical records in 2008, or in 2009, appear to be silent on her capacity to work.
There is no evidence about whether the Insurer took any steps to ascertain such information.
It should be noted, however, that for most of the period up to January 2008, whilst suffering the conditions of which she complained from 2006, the Plaintiff was in full-time employment. Also, for at least part, if not all, of the two years prior to ceasing work with the Employer, in January 2008, the Plaintiff had been taking the same type of medication. Indeed, there was no evidence that she had been unable to work, full-time, at any time during the period 2000 and January 2008.
It will also be remembered that the Plaintiff had even started her own business after the events in March 2006. She did not assert that she had been unable to perform in that business during the time that she conducted it.

The Construction Issue

The Plaintiff's submissions, regarding the construction of term "Date of Disablement" in the Policy, have been alluded to previously. In the written Submissions in reply, counsel for the Plaintiff put the submissions on this topic in this way: "1. There is a dispute between the parties as to the construction of the term 'Date of Disablement' as it appears in the Policy. The practical effect of that dispute is that there is also a dispute as to whether there are one or more dates which may constitute the plaintiff's 'Date of Disablement'. The defendants contend that the 'Date of Disablement' is the date on which the plaintiff ceased work for Aspire (variously said to be 25 or 28 January 20082 or 18 April 2008). 2. The plaintiff says that the applicable 'Date of Disablement' is either the date on which the plaintiff ceased work for Aspire or, if it is the case that the plaintiff did not become disabled until the assault on 9 September 2009, the 'Date of Disablement' is therefore 9 September 2009 being the date of the 'disabling event'. 3. The plaintiff's case is that the policy permits the 'Date of Disablement' to be any date within the two years after the last date on which the 'Insured Member' was last in employment. That construction is supported by the following features of the definitions of both 'Date of Disablement' and 'Totally and Permanently Disabled': a. The provision made in the definition of 'Date of Disablement' for that date to be 'the date of the disabling event' in the event of: i. A claim being made by an 'Insured Member [who] is not currently at work … (c) where the Insured Member has ceased to be in gainful work for a period of less than two years'; and ii. A claim being made where 'the Insured Member is not currently at work'. That provision must qualify the preceding part of the definition. b. The use of the qualifying term 'in relation to an Insured Member who has been in gainful work at any time during the two years immediately preceding the Date of Disablement' (emphasis added) in the definition of 'Totally and Permanently Disabled'. If the 'Date of Disablement' must, as the defendants contend, be the last date on which the plaintiff worked, then the words 'at any time during the two years immediately preceding' have no work to do and are rendered otiose. Following the defendants' construction to its logical conclusion, the qualifying term would read 'in relation to an Insured Member who was in gainful work at the Date of Disablement'. Plainly, that cannot have been the intention of the author/s of the policy; c. The provision at clause (2) of the definition of 'Totally and Permanently Disabled' of a separate and more stringent test for TPD where an 'Insured Member … has not been in gainful work at any time during the two years immediately preceding the Date of Disablement'. 4. The construction of the term 'Date of Disablement' for which the plaintiff contends is readily apparent on the terms of the Policy. That being said, to the extent that there is any ambiguity between the initial portion of the definition and that which follows at subclauses (1) and (2), the definition (and indeed the policy as a whole) should be given a liberal construction and construed contra proferentem against the interests of the second defendant."
As stated, counsel for the Plaintiff seemed to accept that the Plaintiff had not previously pleaded, or otherwise raised (prior to provision of the Plaintiff's written submissions), the alternative construction relied upon. However, he submitted that no particular prejudice had been identified as flowing from the failure to do so.
He also submitted that: "a. The Policy is the [Insurer's] document and the officers of the [Insurer] should be aware of the meaning of its terms. This is particularly so in the context of the second declinature, by which point these proceedings had been on foot for some time and the [Insurer] presumably had the benefit of legal advice in respect of the Policy; b. The construction of the term 'Date of Disablement' for which the plaintiff contends is readily apparent on the face of the Policy; c. It is readily apparent from the reasons for each declinature that the officers of the [Insurer] responsible for making each decision were alive to the possibility that the events of 9 September 2009 may have rendered the plaintiff TPD but elected to treat those events as excluded from consideration by reason of the narrower construction of 'Date of Disablement' that they elected to apply; d. The [Insurer's] duty of utmost good faith required the [Insurer] to give proper consideration to and properly apply the terms of the policy in the context of the plaintiff's claim. If it is accepted that the plaintiff is entitled to rely on the [Insurer's] failure to consider the possibility that the plaintiff's Date of Disablement fell on 9 September 2009, it follows that the decisions of the second defendant must be vitiated by reason of the second defendant's failure to consider that issue."
Counsel for the Insurer did not deal with the submissions in writing. However, in his oral submissions, he stated, at T112.28 - T114.37: "[HANSON:] As I understand the submission it is said that although Ms Folmer leaves on 25 or 28 January 2008, the date of disablement falls to be assessed at some indeterminate time in the future. If that were possible on a divorced, academic construction of date of disablement, it is not possible in this case because the entire claim and Ms Folmer's evidence in the witness box proceeds on the basis that she left work on either 25 or 28 January 2008 because of illness and has not been able to work since. Then looking at the definition [of Date of Disablement], that must be the date she leaves work. The date on which commenced the most recent period of absence from employment through injury or illness, Ms Folmer's case is she ceased on 25 or 28 January and has not been back so that must be the commencement of the most recent period of absence. HIS HONOUR: And do I need to deal with the broader construction bearing in mind the pleadings? HANSON: We say not on the pleading. We also say that the decision that is sought to be attacked is the decision made on the basis of a date that the plaintiff requested and maintained. I will talk first about the pleading and paragraphs 9 and 10 which are on page 3 of exhibit A, the particulars to paragraph 9. Paragraph 9.2 provides 'on or about 25 January 2008...anxiety, depression and agoraphobia'. Then 9.3 particulars, 'The plaintiff has not worked since approximately 25 January 2008'. Ceased on this date because of illness and not worked since. The pleadings then go on at paragraph 10, 'The plaintiff has been continuously...anxiety, depression and agoraphobia'. Paragraph 10, on its face, clearly sets the date at which the clock starts ticking for the waiting period. HANSON: That's the first thing I wanted to say. The second thing that I wanted to say is the commencing documents for the claim are the AMP member's statement exhibit A page 138 and the VicSuper application for total and permanent disability benefit at exhibit A page 142. These documents are the same benefit being a TPD benefit through VicSuper on this AMP policy and they both provide the crucial date in this case 28 January 2008. And they both provide from that date the plaintiff has been unable to work through reason of illness or injury…. … HANSON: Amongst the difficulties of the alternative construction - let me approach that another way, if I can. Let me take your Honour back to the total and permanent disability definition page 34 of exhibit A. There are two limbs if the plaintiff has been in gainful work at the relevant time. First, that the insured member has been continuously unable to work for the TPD waiting period, so the qualification period, if you will, and in this case the TPD waiting period is six months. And then, secondly, that in the insurer's opinion, after considering medical and other material satisfactory to the insurer - when we say 'satisfactory to the insurer', that dovetails with the onus to satisfy the insurer contained in the insuring clause. That the insured member is unlikely ever again to work for a reward in a business occupation or regular duties for which he or she is reasonably qualified by education, training or experience. Now the reason I go back to that is the first limb, that the insured member has been continuously unable to work because of injury or illness through the TPD waiting period, the authorities are clear that with such a policy definition the time for assessment of that second limb, unlikely ever to work again, is the conclusion of the waiting period. Sometimes it says at the expiry of three months, sometimes it says at the expiry of six months. In this case it says TPD waiting period which is otherwise defined in a schedule as six months."
I do not accept the construction that has been advanced on behalf of the Plaintiff. In my view, on the proper construction, and in relation to the Plaintiff, the "most recent period of absence from employment through injury or illness" (if it were established that she ceased work through injury or illness), which she herself stated she did, was 25 (or 28) January 2008.
The Plaintiff gave clear evidence that she was not able to work at all after the date she ceased work in January 2008. There was no leave of absence granted to her by the Employer at that time, or otherwise, and the evidence is clear that she did not return to work with the Employer, or otherwise, at any time thereafter.
In my view, as the Plaintiff had been in gainful work during the two years immediately preceding the Date of Disablement, and because she had asserted to the Insurer that she had been continuously unable to work because of injury, or illness, for the TPD Waiting Period (6 months or where the Insurer considered that the circumstances of the case made it appropriate to waive the TPD Waiting Period), the Insurer was required to form the opinion (after considering medical and other evidence satisfactory to it), whether she was unable ever again to work for reward in any business, occupation or regular duties for which she was reasonably qualified by education, training or experience, at the expiry of the six month period after she was last absent from employment through illness or injury, that is to say, on about 25 (or 28) July 2008.
As was written by Ball J in Erzurumlu v Kellogg Superannuation Pty Ltd at [55]: "Although it is an issue that is ultimately to be determined by the terms of the trust deed and policy, generally the question whether a member suffers from total and permanent disablement is to be determined at the time and by reference to the facts that exist at the time the member first suffers from total and permanent disablement in accordance with the policy. It is at that time, and by reference to those facts, that the trustee and insurer are required to consider the question whether the member suffers from total and permanent disablement."
The construction advanced by the Plaintiff, if accepted, would result in the Plaintiff, at any time after having being absent from work for 6 months, to seek to satisfy the Insurer that she was relevantly unable ever again to work for reward in any business, occupation, or regular duties for which she was reasonably qualified by education, training or experience, by reason of the illness or injury or illness that led to her absence from work, after 2 years and 6 months from when she first ceased work. That is not how the relevant Clause of the Policy should be read.
I respectfully agree with the Insurer's contention that the alternative construction "makes the insurer's liability more open ended and more uncertain" (T115.35 - T115.37) and that this is not a proper construction of that Clause of the Policy.
In the written submissions in reply, counsel for the Plaintiff accepted that if the "Date of Disablement" was in January 2008, the Court must confine its enquiry to the question whether the Plaintiff is TPD by reason of the psychological or physical illness, or injury, from which she was suffering at that time.

The Plaintiff's Submissions regarding the Declinature by the Insurer

The Plaintiff submitted that the Insurer had declined the Plaintiff's claim on two occasions, first in late 2016 and subsequently by letter dated 16 February 2018. It was put that, "curiously", the reasons alleged to support the initial declinature of the claim were not provided by it until 27 September 2017, well after the commencement of these proceedings and that the Plaintiff did not accept that the 27 September 2017 reasons were capable of constituting reasons for the first declinature.
The Plaintiff also submitted that the Insurer had not identified the author/s of either the letter dated 27 September 2017, or 16 February 2018; nor had it elected to go into evidence in explanation of, or to support, its decisions. It was contended that in those circumstances, the Court was limited to considering the evidence which can be gleaned from the face of the Insurer's decisions.
The Plaintiff submitted, further, that the first decision to decline the Plaintiff's claim was made, on behalf of the Insurer, by Tadeusz Brejnakowski on 23 November 2016, being the TPD Final Claim Summary dated 23 November 2016 (Ex. A/243(a) - (d)) which had been sent to the Trustee but not to the Plaintiff or her solicitors.
Counsel went on to submit that a consideration of that document revealed the Insurer, in making its first decision to decline the Plaintiff's claim, did not consider, or address, what it should have, including the whole of the medical records in the Insurer's possession, which when read, did not support the conclusion that the Plaintiff's "psychological symptoms initially present in July 2000 … abruptly cease in April 2007"; or, that there were "no entries relating to her recurrent bowel concerns until 2014"; or, that the records from the Wynyard Medical Centre "show a consultation on 4 May 2006, no further consultations until March 2011, and do not mention the claimed conditions": at Ex. A/243(b).
The Plaintiff's counsel then turned to the letter dated 27 September 2017. In regard to this document, he submitted that the author of the letter was unidentified. If, as was submitted by the Insurer, that letter provided "more fulsome" reasons, it was not clear that the author of the letter was Mr Brejnakowski, who had been the author of the TPD Final Claim Summary, and, therefore, the person who had considered the Claim. Submitting as the Insurer did, that the author of the letter and the decision to decline the claim was that of the Insurer as a corporate entity, should be rejected.
Counsel for the Plaintiff submitted that Mr Brejnakowski had been given the task of making a decision whether the Claim for a TPD benefit should be accepted or declined. He was to form an opinion whether he was satisfied that an "Insured Event" (in this case, the Plaintiff becoming "Totally and Permanently Disabled") had occurred. In forming his opinion, Mr Brejnakowski had undertaken a subjective assessment of the information available to him as at 23 November 2016. His decision, on behalf of the Insurer, to decline the Plaintiff's claim on 23 November 2016, was based upon that subjective assessment. Accordingly, the only reasons that could explain the decision were the reasons identified in the document.
(That another employee of the Insurer, in September 2017, may have conducted his, or her, own review of the information provided, and come to the same conclusion as Mr Brejnakowski is irrelevant. That conclusion is necessarily based on that employee's own assessment of the available information and cannot be regarded as a substitute for Mr Brejnakowski's assessment.)
Counsel for the Plaintiff then submitted that if the letter of 27 September 2017 was intended to provide "more fulsome reasons" for the first declinature, or, alternatively, it constituted a second declinature, it demonstrated a breach of the Insurer's duty because: 1. The "clinical records" of Dr Stillger were described as showing "little to no consultations in relation to the claimed conditions. [The Plaintiff's] psychological symptoms initially present in July 2000 and abruptly cease in April 2007": (Ex. A/243b). Dr Stillger's notes actually show that between April 2007 and July 2008, the Plaintiff was having flash backs and cutting herself; was committing "self-harm, not remembering doing things, flash backs with past trauma … panic …"; had, as at 7 July 2008, worsening panic attacks; was being prescribed Lovan (an anti-depressant) in close proximity to her cessation of work with Aspire and on multiple occasions was prescribed Kalma (an anxiolytic). 2. There was no reference to AMP Member's statement (Ex. A/138 - 141), the Plaintiff's Statement (Ex. A/170 - 174); the letter from the Plaintiff's solicitors to the Trustee, a copy of which had been provided to the Insurer (Ex. A/232 - 234); the Medical Report Disability Support Pension completed by Dr Stillger (Ex. A/301 - 308); the Job Capacity Assessment Report (Ex. A/309 - 316); the report of Dr Ross Kirkman of 4 October 2011 (which supports the conclusion that events prior to the 9 September 2009 assault were the primary drivers of the Plaintiff's psychological conditions) (Ex. A/321); the "Medical questionnaire to be completed by your doctor", completed by Gerard Moore (Ex. A/326 - 327); the CommInsure Medical Attendant's Statement completed by Dr Stillger (Ex. A/330 - 331); the Permanent Incapacity Medical Certificate completed by Dr Stillger on 2 October 2014 (Ex. A/332); the Reports of Dr Stillger to Wholesale Life Services (Ex. A/335 - 338); and, the Referral from Dr Kushan Rajapaksha to Dr Kirkman of 29 March 2010, which provided a history of the Plaintiff suffering from depression and panic attacks for two years (Ex. A/363). 3. Whilst there was a reference to the report of Dr Kirkman of 27 October 2010 (Ex. A/296 - 300) there was no attempt made to grapple with the information in that report, which information supported the Plaintiff's claim, particularly that she had developed Borderline Personality Disorder as a result of issues in her childhood, along with Agoraphobia and Major Depression; that she had ceased work because she did not feel that she was in a fit state to work; and that her life had fallen apart when she ceased work.
As a result, it was submitted, that in forming the opinion to decline the Plaintiff's claim, as expressed in the TPD Final Claim Summary dated 23 November 2016, Mr Brejnakowski, or alternatively, the author of the letter dated 27 September 2017, had "cherry picked" the information supportive of his decision to decline the claim whilst not considering, ignoring or for reasons that are unexplained, not giving any weight to, the information available to him that was supportive of the Plaintiff's claim. Accordingly, the Insurer had acted unfairly, unreasonably and with an absence of utmost good faith, such as to constitute a breach of its duty and obligations and to warrant the vitiation of the 23 November 2016 decision.
Counsel for the Plaintiff then dealt with Insurer's letter of 26 February 2018 (Ex. A/271 - 276). He disputed whether the letter constituted a second, distinct, declinature of the Plaintiff's claim or whether it was, in fact, merely a further set of arguments advanced by the Insurer in support of its initial decision to decline the Plaintiff's claim. It was submitted that it would be open to the Court to treat the letter as merely argumentative, rather than determinative of the Insurer's position under the Policy and, thus, not requiring further consideration on the first stage enquiry.
In response to the Insurer's submission that there were no grounds upon which the Court should vitiate the Insurer's second decision to decline the Claim, counsel for the Plaintiff was submitted that the second decision suffered from many of the same defects as the first and should also be vitiated.
In particular, it was submitted that: 1. The second decision assumed that it was necessary, for the purpose of establishing that the Plaintiff ceased work due to illness or injury, that there be a contemporaneous record of "substantial symptoms at or about the time she ceased work" and a "contemporaneous view by her treating doctor that she was unable to continue working" (Ex A/272). Whilst the assumption as to symptoms might be valid in the case of an insured who, at the time she ceased work, had no prior medical history of the allegedly disabling condition, it cannot be correct where, as here, the Plaintiff had a lengthy and documented history of significant psychological symptoms and treatment from 2006 onwards. Where there was nothing in Dr Stillger's contemporaneous notes (on which the Insurer placed so much emphasis in the second decision) to suggest that, as at January 2008, the Plaintiff had recovered from, and ceased to require treatment for, the psychological symptoms which she had been experiencing since 2006, and where there was, in fact, evidence that she continued to be medicated for those symptoms both prior to, and shortly after, she ceased work, the Insurer's assumption that there must be a contemporaneous record of "substantial symptoms at or about the time she ceased work" was nothing more than the addition of an impermissible, and unnecessary, gloss to the basic requirement that the Plaintiff had ceased work due to illness or injury. 1. That gloss carried over to the Insurer's proposition that there must also be a "contemporaneous view by her treating doctor that the Plaintiff was unable to continue working". As at 2008, the Plaintiff was seeing Dr Stillger for treatment purposes only. There was no suggestion that the Plaintiff made, or even contemplated, either a TPD claim, or a workers compensation claim, at the time she ceased work with the Employer. In the circumstances, it was difficult to understand why the Plaintiff ceasing work would have been relevant to Dr Stillger's treatment of her, such that Dr Stillger might reasonably be thought to have been likely to make a note of it. 2. The Insurer dismissed the statement made by Dr Stillger in her report dated 2 January 2018 (Ex. A/741) as being "of little assistance" because the report did not describe the symptoms from which the Plaintiff was suffering in 2008. Nor did it explain "why the contemporaneous clinical notes do not include any record of significant symptoms at the relevant time" (Ex. A/272). 3. Criticism was also made of Dr Stillger's reference to April 2008 (as opposed to January 2008). That report must be read in the context of the letter of instructions which gave rise to the report (Ex. A/740). Moreover, in circumstances where there was no evidence pointed to by the Insurer as indicative of the Plaintiff having left work for any reason other than injury or illness, the Plaintiff's own evidence (Ex. A/138 - 141) (which the Insurer wholly ignored) was to the effect that she had ceased work due to psychological illness, Dr Stillger's contemporaneous knowledge of the Plaintiff's psychological condition around January 2008 (the Plaintiff having consulted her in December 2007 and February 2008) was important. There was no basis for suggesting that Dr Stillger was acting as an advocate for the Plaintiff. To do so was wholly unreasonable, unfair and demonstrative of an absence of good faith on the part of the Insurer to dismiss as of "little assistance" Dr Stillger's report of 2 January 2008. 1. The Insurer made no reference to the majority of the documents listed above. All of those documents contained information supportive of the Plaintiff's claim. In circumstances where there was no other evidence before the Court to suggest that the author of the 16 February 2018 letter had regard to those documents, the Court cannot be satisfied that they had been considered by the Insurer in the context of the second declinature. The failure to give any consideration to those documents constituted a breach of the Insurer's duty of utmost good faith and its obligation to act reasonably. 2. The Insurer dismissed the Medical Attendant's Statement completed by Dr Stillger for CommInsure on 2 October 2014 (Ex. A/330 - 331), from consideration on the question of whether the Plaintiff was unable ever to return to work, at least in part because it "appears to take into account … two years of rehabilitation treatment and alternate duties attempted by your client after 2008" (Ex. A/274). 3. Subsequent medical evidence is relevant to the formation of the prognostic opinion typically required in TPD claims. Dr Stillger's reference to treatment after 2008 was no more than a comment that the Plaintiff had been treated for the conditions that caused her to cease work in 2008, which treatment Dr Stillger clearly viewed as having been unsuccessful. Whilst the Insurer might not have liked that opinion, her reference to subsequent unsuccessful treatment after 2008 could not reasonably have formed a basis for discounting the opinion as to the Plaintiff's prognosis. 4. The Insurer asserted that "the evidence is most consistent with the conclusion that … [the Plaintiff] was, in and after July 2008, experiencing symptoms specifically attributable to a temporary stressor … [and that] she experienced improvement in early and mid-2009, and her condition was described in relatively positive terms" (Ex. A/274). The "evidence" to which the Insurer referred was the "contemporaneous records", being the records of Burnie Medical Centre, which did not indicate that the Plaintiff was then only "experiencing symptoms specifically attributable to a temporary stressor" or that she was experiencing "improvement in early and mid-2009". 5. The Insurer did not pay attention to many of the entries in Dr Stillger's notes, including to those of 19 September 2008 and 3 March 2009 or to the medication that the Plaintiff was being prescribed (including, levels of anti-depressant (Lovan) and anxiolytic medication (Kalma, Ativan, Temaze, Diazepam), which medication essentially remained consistent throughout the period July 2008 to September 2009, or to the Plaintiff's affidavit of 23 August 2017 or the statements annexed to her affidavit. Rather, the Insurer elected to focus on a single narrow issue in connection with the content of the Plaintiff's affidavit sworn 26 October 2017 (being the question whether the Plaintiff actually took medication prescribed to her) electing to ignore the evidence in paragraphs 7 and 8 of that affidavit which stated that at the time of the September 2009 assault she was still suffering from depression and anxiety and would not have been able to return to work, irrespective of the 2009 assault and its sequelae.
Then, in summary, counsel for the Plaintiff submitted that: "Considered on their own, or collectively, each of the above matters points to the jaundiced view the [Insurer] took of the plaintiff's claim, such that in each of its decisions, [the Insurer] made a concerted effort to focus only on that information which was unsupportive of the plaintiff's claim, and misrepresented, ignored or dismissed, without sound reasons for doing so, the evidence that was supportive of the plaintiff's claim. In so doing, [the Insurer] breached its duty of utmost good faith and its obligation to act reasonably, such that its decisions should be vitiated and the Court should proceed to determine the issue of TPD for itself."
In relation to the Insurer's breach of its duty, the Plaintiff also submitted that it had failed to determine the Claim in a timely way. Counsel contended that it was obliged to consider and determine whether it should form an opinion on the matter which was a condition of its own liability - that is, to consider and determine whether it should form an opinion on parts (i) and (ii) of the TPD Clause. The Plaintiff had submitted the Claim on 15 October 2014. At the time she lodged her claim, the Plaintiff had supplied the Defendants with a considerable body of evidence in support thereof. She provided additional documents to the Insurer on 4 November 2014, 11 December 2014, 17 March 2015, 29 June 2015, 11 August 2015 and 9 February 2016. In addition to the documents supplied by the Plaintiff, the Insurer had obtained clinical notes and other treatment records from the Plaintiff's treating medical practitioners, together with two reports from the Plaintiff's treating general practitioner, Dr Stillger. The Plaintiff had not supplied those documents in response to any request by the Insurer but in support of her claim and to assist the Insurer to make a decision in relation to that claim.
It was submitted that by, at least, October 2015 (a period of approximately three months after it received the Plaintiff's statement dated 18 June 2015), the Insurer was in possession of sufficient evidence to enable it to form an opinion on the TPD clause favourable to the Claim and that by failing to do so (and in fact by failing to form any opinion at all until late 2016), the Insurer had breached its obligation to form an opinion.
The Plaintiff then submitted that if the Court were satisfied that the Insurer had breached its obligation to form an opinion, the Court was entitled to move directly to the second stage enquiry, without the need to consider the Insurer's subsequent efforts to form an opinion in accordance with its obligation.
Counsel for the Insurer submitted that as TPD Final Claim Summary dated 23 November 2016 had not been sent to the Plaintiff, or to her solicitors, the Insurer did not rely upon it. Rather, the Insurer relied upon the letter dated 27 September 2017, from the Insurer to the Plaintiff's solicitors (Ex. A/256 - 260), which was sent under cover of an email of the same date from Ms Chelsea Innes, the Claims Manager, Melbourne Group Claims, Insurance and Superannuation.
The reasons given by the Insurer have been identified in the TPD Final Claim Summary dated 23 November 2016, the letter dated 27 September 2017 and in the Insurer's letter of 26 February 2018 and do not require repetition. (There are other submissions to which reference will be made.)

The Submissions regarding whether the Plaintiff was TPD

As I have concluded that the Date of Disablement was 25 (or 28) January 2008, it is necessary to consider the Plaintiff's submissions regarding the Plaintiff's condition as at 25 (or 28) July 2008, that being 6 months after the Date of Disablement.
It was submitted that there was sufficient evidence that the Plaintiff had ceased work with the Employer as a result of her poor mental health. This was based on the evidence that, from at least 15 March 2006, the Plaintiff was suffering from a psychological (or mental) illness (panic disorder and major depression) as a consequence of her interaction with the police in Victoria in March 2006 and that she was receiving psychological treatment and medication for that illness.
I have referred to the Patient Health Summary Records and shall not repeat the matters relied upon. That condition was diagnosed by Mr Marriott in his report of 28 September 2008: Ex. A/767(f) - 767(j). Reference was also made to Dr Stillger's report dated 2 January 2018 (Ex. A/741) which stated that in her opinion, the Plaintiff "had ceased work as a direct result of her significant mental health illnesses as noted from April 2008".
Counsel contended that the fact that the Plaintiff had made some attempts to pursue a PhD and to apply for some jobs during that period is not inconsistent with the proposition that she was, as at July 2008, TPD. There was evidence that the Plaintiff was, by reason of her psychological condition, unable to cope with the demands of the PhD course. There was no evidence by which the Court could be satisfied that the activities the Plaintiff undertook as part of her PhD were commensurate with those she had undertaken whilst in employment such that any correlation could be drawn between her studies and her ability to work during the relevant period. There was also no evidence as to the nature of the jobs applied for and she was not cross examined on that issue, such that it could not reasonably be assumed that the jobs were full-time (as required by the definition of TPD) or were jobs for which the Plaintiff was qualified by reason of her education, training or experience.
To the contrary, any application by the Plaintiff for a job was consistent merely with her not having accepted, at that stage, that she was no longer able to work full-time in a job for which she was qualified by reason of her education, training or experience. Her non-acceptance was not inconsistent with her, in fact, being TPD as at July 2008 and subsequently.
Counsel for the Insurer submitted that there was no contemporaneous medical evidence that the Plaintiff was unable to work because of injury or illness on 28 January 2008, or was continuously unable to work thereafter for the TPD Waiting Period of 6 months. The Plaintiff's medical records showed consultations before, and after, January 2008, none of which included any reference to the claimed symptoms or any reference to disability from work.
He went on to submit that the Court should not accept, and it was reasonable for the Insurer not to accept, that the Plaintiff was unable to work because of injury or illness on 28 January 2008, and was continuously unable to work thereafter for the TPD Waiting Period of 6 months.
He submitted, also that TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; (2016) 332 ALR 507; [2016] NSWCA 68, at [87] - [91], that the phrase "unlikely ever to engage in or work for reward" contained in the definition of total and permanent disablement, in that case, required that the Insurer be satisfied that there is "no real chance" that the person may return to relevant work, such that unless the insurer is satisfied of that, the definition is not satisfied and no benefit is payable.
The definition in the Policy in this case required the Insurer to be satisfied that the Plaintiff be "unable ever again to work for reward..." and that, on its ordinary meaning, "unable ever" appeared to posit a more stringent test than "unlikely ever".
Furthermore, the Insurer was not required to consider deterioration in the Plaintiff's condition after the time for assessment, which was 28 July 2008, at the end of the TPD Waiting Period. Thus, in this case, the events of September 2009, were irrelevant to the Insurer's assessment. To the extent that she suffered, thereafter, from any permanent disability for suitable work, such disability arose after the date for assessment under the Policy.
It was then submitted that, in July 2008, the Plaintiff's medical condition was caused by a "temporary stressor". Indeed, Counsel for the Insurer pointed to Dr Stillger's consultation record on 7 July 2008 of "panic attacks worse, agraphobia [sic], trial started": Ex. A/457.
For these reasons, counsel submitted that in relation to this aspect of the TPD definition, each of the Insurer's decisions were not only reasonably open, but were correct.

The Applicable Legal Principles

Different principles apply to the performance by a Trustee of any duty to form an opinion as to a matter on which a member's entitlement to a benefit depends, and to the performance by an Insurer of a contractual obligation to form such an opinion and to the relief that may be sought assuming a breach of duty or obligation by either, or both, is established.
In this case, it is now only necessary to deal with the duties of the Insurer.
However, before doing so, it is necessary to repeat that the onus is on the insured Plaintiff. The general position is stated in W I B Enright and R M Merkin, Sutton on Insurance Law (4th ed, 2015, Thomson Reuters), Vol 2, at [21.120]: "The onus is on the insured to make out and prove the claim including providing evidence and medical evidence about the extent of the incapacity and evidence negating the likelihood of the life insured engaging in the future in any occupation for which he or she is reasonably qualified. An insurer may compel a life insured to undergo a medical examination in accordance with a policy term to that effect even if the life insured is not a party to the litigation. Clearly, only the life insured can supply the necessary information in respect of her or his education, training and experience."
There was no dispute that the Plaintiff bears the onus to prove the alleged breaches of duty by the Insurer and, also, that she also bears the onus to prove that she was TPD at the relevant time. An evidentiary onus may remain on the Insurer to produce some material to show that there exists specific business, occupation, or regular duties, which the Plaintiff was likely suited to perform: Shuetrim v FSS Trustee Corporation [2015] NSWSC 464, at [49]. (While this decision was subject to a successful appeal, its formulation in respect of the evidentiary onus that may remain on the insurer appears to be undisturbed, although, and importantly, Leeming JA (with Beazley P and Emmett AJA concurring) qualified that "[u]ltimately the onus is upon [the Plaintiff] to provide evidence sufficient to support the opinion required by the TPD definition": TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim, at [37], [207].)
The nature of the Insurer's contractual obligation is discussed in the summary of McLelland J in Edwards v The Hunter Valley Co-Op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113, at 77,536-7. That statement was approved by the Court of Appeal in Hannover Life Re of Australasia Ltd v Sayseng (2005) 13 ANZ Ins Cas 90-123; [2005] NSWCA 214 at [47], [50]. Relevantly, McLelland J stated: "It is next necessary to examine the nature and content of Zurich's relevant obligations under the policy. Those obligations were contractual and not fiduciary. Zurich was an insurer, not a trustee. Since the commercial purpose of the policy was, relevantly, to provide insurance against the risk of total and permanent disablement, and since the policy was expressed in terms requiring the formation by Zurich of a particular opinion as a condition of Zurich's own liability, there was clearly an implied obligation on Zurich to consider and determine whether it should form that opinion. That involved a consideration and determination of the correct question (see Butcher v Port (1985) 1 NZLR 491 at 496 , 504, and cf Wilson v Metro Goldwyn Mayer 18 NSWLR 730 at 734). Furthermore, in the exercise of powers affecting the interests both of itself and the claimant, Zurich was under a duty of good faith and fair dealing which required it to have due regard for the interests of the claimant (see Distillers Co Biochemicals (Aust) v Ajax Insurance Co 130 CLR 1 at 29-31). This duty is in my opinion analogous to the duty to which a mortgagee is subject in exercising a power of sale of mortgaged property, and to the duty to which a controlling shareholder of a company is subject in exercising a right to procure the passage of a resolution affecting the interests of the shareholders at a general meeting of the company (cf Peters American Delicacy Co v Heath 61 CLR 457 at 502-4). (It is to be noted that the policy was issued prior to the commencement of the Insurance Contracts Act 1984). Where under a contract, rights or liabilities depend upon the subjective state of mind of a party, eg the party's approval, opinion or satisfaction, of or about something, it can be a difficult question whether the party is subject to an implied obligation in reaching that state of mind, or failing to reach it, as the case may be, to be bound by objective standards of reasonableness (see the discussion by Mason J in Meehan v Jones 149 CLR 571 at 590-1, and see also VL Credits v Switzerland General Insurance (1991) 2 VR 311 at 315-6). However in the field of insurance, it is well established that where under a contract of insurance an element of the insurer's liability is expressed in terms of the satisfaction or opinion of the insurer, the insurer is obliged to act reasonably in considering and determining that matter (see Moore v Woolsey (1854) 4 E1 & B1 243, 119 ER 93; Braunstein v Accidental Death Insurance Co (1861) 1 B & S 782, 121 ER 904; London Guarantie Co v Fearnley (1880) 5 App Cas 911 at 916 , 921; Doyle v City of Glasgow Life Insurance Co (1884) 53 LJ Ch 527; Harvey v Ocean Accident and Guarantee Co (1905) 2 IR 1; Butcher v Port (1985) 1 NZLR 491, cf Teur v London Life Insurance Co (1936) 1 DLR 161)."
Recently, in Newling v FSS Trustee Corporation (No 2) [2018] NSWSC 1405, Parker J discussed this principle and said, at [138]: "The judgment of McLelland J in Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 remains the classic statement of an insurer's obligations in deciding whether to accept or decline a claim under a policy where a liability to pay is conditional on the insurer being satisfied of the validity of the claim. The insurer is obliged both to act reasonably in making the decision and to act with the utmost good faith in handling the claim, including, but not limited to, the actual process of decision-making … But where matters of judgment are involved, according to his Honour, the insurer's decision cannot be impeached merely because the Court would have reached a different conclusion …"
In Carroll v United Super Pty Ltd [2018] NSWSC 403, Slattery J dealt with the decision making duties of the Insurer at [91] - [94]: "The Insurer's Duty of Utmost Good Faith. An insurer dealing with a claim against it owes an insured a duty of utmost good faith, sometimes also described as a duty of good faith and fair dealing... The duty of utmost good faith does not impose obligations in the abstract; it depends on the contractual rights and obligations of the parties in relation to the claim; and it imposes an obligation on the insurer to exercise its rights and discharge its obligations as conferred by the contract of insurance with the utmost good faith... The insurer's obligation of utmost good faith is contractual not fiduciary. Conduct which would not be permissible in a fiduciary relationship will not necessarily infringe the duties of good faith and fair dealing, as the fiduciary relationship is one in which the parties are not free to pursue their separate interests… Some common practical examples of the discharge of the obligation of good faith and fair dealing assist in understanding its scope. The obligation may, in appropriate circumstances, require an obvious enquiry to be made... It is important to correlate the activities that an insured is capable of undertaking, as for example activities that are demonstrated in video surveillance material, to the activities the insured is required to undertake in employment..." (Omitting citations)
It has been said that when an insurer assesses a claim under a policy, it is "in a very real sense acting as a judge in the insurer's own case": Beverley v Tyndall Life Insurance Co Ltd (1999) 21 WAR 327; [1999] WASCA 198, at [6]. The insurer must, therefore, "do all such things as are necessary" on its part to enable the insured "to have the benefit of the contract": Butt v McDonald (1896) 7 QLJ 68, at 70 - 71. The insurer should act in an unbiased way and must not act unreasonably: Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234.
Utmost good faith also demands that an insurer should make a "timely response to a claim for indemnity": CGU Insurance Ltd v AMP Financial Planning Pty Ltd (2007) 235 CLR 1, at 12; 81 ALJR 1551; [2007] HCA 36, at [15]. This means "within a reasonable time": Lambert Leasing Inc v QBE Insurance (Australia) Ltd (2016) 93 NSWLR 166; [2016] NSWCA 254 at [72].
In CGU Insurance Ltd v AMP Financial Planning Pty Ltd, Callinan and Heydon JJ added, at [257], that: "Utmost good faith will usually require something more than passivity: it will usually require affirmative or positive action on the part of a person owing a duty of it."
Kirby J, although in dissent to the result, at [176], characterised it as an "affirmative duty of utmost good faith".
Leeming JA wrote in TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim, at [49]: "… the concept of utmost good faith or uberrima fides … encompasses notions of fairness, reasonableness and community standards of decency and fair dealing, and may be breached by capricious or unreasonable conduct which falls short of dishonesty."
In Carroll v United Super Pty Ltd, Slattery J also dealt with the Insurer's duty to form an opinion, and wrote, at [95] - [103], that: "Under a contract for insurance, if an element of insurance liability is expressed in terms of the satisfaction, or opinion, of the insurer, the insurer is obliged to act reasonably in considering and determining that matter: Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 ('Edwards') and Sayseng at [47]. In Edwards (at 77,536) McLelland J stated with respect to clauses such as that in issue in this case, that there was an implied obligation on the insurer to consider and determine whether it should form the relevant opinion, which involved a consideration and determination of the correct question; and in the exercise of powers affecting the interest of both itself and the claimant the insurer was under a duty of good faith and fair dealing requiring it to have due regard to the interest of the claimant. McLelland J's statement of the law was once more adopted with approval by the Court of Appeal last year…. Jones also approved (at [82] - [85]) Brereton J's statement in Jones v United Super Pty Limited at [55] that the insurer's decision will also be liable to be reviewed and avoided by the Court if in forming an opinion (about a claimant's disability) the insurer: (1) misdirects itself in law, that is to say asks itself the wrong question; or (2) takes into account an irrelevant consideration or fails to take into account a relevant consideration. And Jones explains how concepts of reasonableness are to be applied in forming an opinion about a claimant's disability. Jones was decided after the Court reserved judgment in this matter, so the Court gave leave to the parties to make additional submissions in relation to it. The parties especially referred to its statements of principle in relation to reasonableness. Analogies exist between the judicial review cases, in which unreasonableness is assessed in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ("Wednesbury") at 234, and the implied term of reasonableness in contracts of insurance, where the formation of the insurer's opinion is a condition of the insurer's liability. But the analogy is not so close as to require the adoption of the stringent test of unreasonableness in the Wednesbury sense in the insurance contract cases: Jones at [121]. Rather the criterion of reasonableness of an insurer's decision is 'whether the opinion formed by the insurer was not open to an insurer's acting reasonably and fairly in consideration of the claim': Jones at [121]. And the insurer's assessment of reasonableness is not made by reference to entirely objective criteria but must be unreasonable on the material then before the insurer: Jones at [94]. Nor does the assessment of reasonableness require the Court to undertake a review of the merits of the insurer's decision: Jones at [93] and [99]. In Jones (at [65]) the Court of Appeal adopted McLelland J's remarks in Edwards as to the Court's task in deciding whether the insurer was entitled to form the opinion which it did: 'To say that an insurer must act reasonably in forming or declining to form an opinion is not to say that a Court can substitute its own view for that of the insurer. As North J pointed out in Doyle at 529, "reasonable persons may reasonably take different views". Unless the view taken by the insurer can be shown to have been unreasonable on the material then before the insurer, the decision of the insurer cannot be successfully attacked on this ground.' If the view taken by the insurer is shown to have been unreasonable on the material before it, then the decision can be successfully attacked... The Court must not substitute its own view for that of the insurer by reference to additional material not before the insurer… The insurer's duty of utmost good faith in dealing with a claim and the duty to act reasonably in forming an opinion may be compared and contrasted. The duty of utmost good faith: (a) is broader than the implied term obliging the insurer to act reasonably and applies to all aspects of the claims handling process …; (b) does not imply a higher or stricter standard than the implied term requiring the insurer to act reasonably in considering and determining the matter…; (c) is not to be equated with the implied obligation to act reasonably in forming an opinion concerning or being satisfied about a particular matter; nor are the two standards the same…; and (d) requires the insurer to form the opinion itself and to act with the utmost good faith in doing so and it is not sufficient that some other insurer acting reasonably could have reached the conclusion that it did… Some authorities have used other words to describe the obligation to act reasonably in forming an opinion. Nicholas J's description of the obligation is particularly useful: as one which requires the decision-maker to give an objective even-handed and realistic consideration to the whole of the evidence, uninfluenced by personal beliefs, prejudice, suspicion, or speculation... In accordance with authority, 'objective' in Nicholas J's formulation should be taken to mean 'unbiased from the perspective of the decision-maker' and not to invite an assessment of a hypothetical claimant or a decision divorced from the actual material before the decision-maker. The Duty to Give Reasons. It follows from the requirement that the insurer itself form an opinion acting in accordance with its duty of utmost good faith, that the insurer should give reasons for its decision. As Ball J explained in Ziogos at [75]: 'In my opinion, it follows from the previous paragraph that MetLife was also required by its duty of utmost good faith to give reasons for its decision. It is only by examining those reasons that it is possible to determine whether it acted with the utmost good faith in forming the opinion it was required to form. To put the point another way, where an insured person's rights depend not on the objective fact (whether or not the insured suffered from TPD) but on the insurer's opinion concerning that question, the requirement of utmost good faith requires the insurer to explain how it reached the decision it did so that the insured person can be satisfied that the decision itself was reached in the utmost good faith.' But an insurer is not required to undertake the detailed consideration of a claim required at a court hearing ... An insurer's statement of reasons for declining a claim should be understood as a practical document intended to inform the claimant of the basis of the decision rather than providing detailed reasons with reference to the evidence being relied upon, comparable to a judgment of a court or tribunal..."
His Honour repeated these principles in MX v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme [2018] NSWSC 923. At [73], his Honour added: "Some authorities have used other words to describe the obligation to act reasonably in forming an opinion. Nicholas J's description of the obligation is particularly useful: as one which requires the decision maker to give an objective, even-handed and realistic consideration to the whole of the evidence, uninfluenced by personal beliefs, prejudice, suspicion, or speculation: Savelberg v United Super Pty Ltd t/a Cbus Superannuation Fund [2011] NSWSC 1482 at [13]. In accordance with authority, 'objective', in Nicholas J's formulation, should be taken to mean 'unbiased from the perspective of the decision maker' and not to invite an assessment of a hypothetical claimant or a decision divorced from the actual material before the decision maker."
In Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36, the High Court observed, at [66], in expanding upon the implication of the duty to give properly informed consideration to a claim: "If the consideration is not properly informed, it is not genuine. … 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."
Thus, in this case, the Insurer was under an obligation to consider, and determine, whether it should form an opinion on the matter which was a condition of its own liability, being whether the Plaintiff had satisfied the TPD definition. In forming the opinion, it was required to consider, and determine, the correct question or questions, and, in doing so, was required to have due regard to the interests of the Plaintiff.
Yet, in forming its opinion, the obligation of the insurer cannot be equated with the duty of a judge, or a tribunal member, in a judicial, or quasi-judicial, determination of legal rights and liabilities. Nor does it require the insurer to inquire to a point of factual perfection: Alcoa of Australia Retirement Plan Pty Ltd v Frost (2012) 36 VR 618; [2012] VSCA 238, at [60].
The Plaintiff's case, therefore, effectively, involves two stages. First, the Plaintiff must demonstrate that the conduct of the Insurer, in declining the claim, on each occasion relied upon that it did so, was such as to be a breach of its obligations towards her. If that is demonstrated, then the Plaintiff must establish that, on the facts, she was entitled to the benefit which she claims: see, generally, Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233, at [86].
The first stage of the inquiry is confined to an analysis of the material which was before the Insurer each time it declined the claim and the reasonableness of the Insurer's conduct in doing so. The task of the Court is to determine whether the Insurer breached its contractual obligation to act reasonably in considering and determining the claim when forming its opinion whether the definition of total and permanent disablement is satisfied and it must be shown that the view taken by it was unreasonable on the material before it.
The Insurer is required to form an opinion on the question whether the Plaintiff suffered from TPD at the time, and by reference to the facts that existed at the time of disablement, in accordance with the Policy. The time for assessment is upon the expiration of the six month qualifying period which, in this case, was 25 (or 28) July 2008: Erzurumlu v Kellogg Superannuation Pty Ltd, per Ball J, at [55]; Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913, per Brereton J (as his Honour then was), at [33]. This makes it necessary to consider, in forming an opinion, whether, then, notwithstanding the Insured's incapacity, there was any occupation, or work, which she was reasonably capable of performing by reason of her "education, training or experience". The degree of the Insured Member's incapacity, the role of time, that is to say, whether her incapacity will persist into the future or not, and the nature of the diminution in function experienced which is lasting or enduring, thereby limiting her capacity to work in a role which she was reasonably capable of performing by reason of her "education, training or experience", will play a significant role.
Whilst, the Court "should not treat a letter written by the Insurer rejecting a claim for TPD benefit as if it were a judgment of a court under appeal. However, if the circumstances warrant it, the Court will be justified in treating the rejection letter and any associated correspondence as being the work of a highly experienced insurance claims assessor with the assistance of whatever legal advice the insurer may choose to obtain": Hellessey v MetLife Insurance Limited [2017] NSWSC 1284, per Robb J, at [125].
Robb J continued at [126] and [128] - [129]: "In any event, proper judicial method requires that the court analyse and understand to the fullest extent possible the evidence available to the insurer and the process of reasoning that is exposed by its correspondence, so that the decision of the court as to whether the insurer has acted reasonably is not made from a position of ignorance. … … it seems to me from a consideration of what other trial judges have done in recent cases in which the insurer's decision-making process has been found wanting is that the court has engaged in a close but measured analysis of the insurer's reasoning in response to the evidence that was before it to determine whether the conclusion reached was sufficiently unreasonable to warrant the decision being set aside... The TPD definition requires that the claimant be incapacitated at the end of six consecutive months' absence from work as a result of the injury or illness. This date may conveniently be called the 'assessment date'. It is at that date that the incapacity must be such as to satisfy what Leeming JA called the ETE clause. The question is, however, whether or not the claimant's incapacity objectively satisfies the clause at the assessment date, and not whether the prognosis of the claimant based upon the medical and other evidence available at the assessment date suggests that the ETE clause is satisfied. What is material is not the appearance as at the assessment date but the actual probable consequences of the incapacity." (Omitting citations)
The Court is not to substitute its own view for that of the Insurer. It is important to recognise that reasonable persons may reasonably take different views, a matter emphasised by the High Court, albeit in a different context, in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, at [28] per French CJ, [75]-[76] per Hayne, Kiefel and Bell JJ.
The Court's enquiry is a limited one, performing a reviewing function.
Yet, as was written in Hannover Life Re of Australasia Ltd v Jones, at [86]: "[T]he insurer is not entitled to refuse a claim for a reason which depends on the efficacy of an opinion in relation to the formation of which it has not acted reasonably and fairly or which does not address the correct question. And if the insurer does form and rely on such an opinion, that constitutes a breach of its contractual obligations, and the court itself may determine whether on the material available to it the claim falls within the policy: Edwards at 77-537; Hannover Life Re v Sayseng at [36]; TAL Life Ltd v Shuetrim at [175]; Beverley v Tyndall Life Insurance at [24]; and Hannover Life Re v Colella at [73]."
Thus, if the insurer has asked the right question or questions, which is, essentially, a matter of correctly interpreting the Policy, has acted in good faith and has dealt fairly with the insured paying due regard to her, or his, interests, has carried out the relevant inquiries, has taken account of the relevant information available to it, has formed an opinion that is reasonably open to it, and has provided reasons that elucidate its reasoning, then the Court cannot intervene. That is so even if a different opinion might also reasonably have been open. At [121], the Court concluded that the correct test is "whether the opinion formed by the insurer was not open to an insurer acting reasonably and fairly in the consideration of the claim".
Taking into account an irrelevant consideration, or failing to take into account a relevant consideration, is directed to considerations that are material: Hannover Life Re of Australasia Ltd v Jones, at [83].
In Newling v FSS Trustee Corporation (No 2), Parker J considered Hannover Life Re of Australasia Ltd v Jones, stating, at [144]: "In my view, the effect of this decision is clear. The Court of Appeal has explicitly adopted a test of unreasonableness which requires a plaintiff to demonstrate that the decision in question was not open to 'an insurer' acting reasonably. That test is not specific to the particular insurer in question, as Ball J stated in Ziogos. If the decision is one which could have been made by an insurer acting reasonably, then it must be sustained."
But what is involved in relation to forming an opinion is not the same as what is involved in decision making by a Court. Furthermore, the Insurer's written reasons cannot be expected to be comparable to that of a Court.
If the Insurer's opinion fails to satisfy the requirements outlined above, it will not be an opinion that has effect under the terms of the insurance and, as a result of the conclusion, that the opinion has no contractual effect; the Court must then determine the disablement question which the contract requires be addressed. It is only if the insurer has failed to form a valid opinion in reaching its decision, taking the principles I have outlined into account, that the Court will be entitled to determine the matter itself, based on all of the evidence available at trial.
In Carroll v United Super Pty Ltd, Slattery J, at [105], put it that: "… the Court may itself determine the question whether the insured suffered from total and permanent disablement: Sayseng at 36, Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2015] NSWCA 104 at [25] and Jones at [67]".
Yet, the Court must not substitute its own view for that of the insurer, by reference to additional material not before the insurer: Hannover Life Re of Australasia Ltd v Sayseng at [54]. The task for the Court is not to assess what it thinks is reasonable and, thereby, conclude that any other view displays error. As stated in Hannover Life Re of Australasia Ltd v Jones, at [99] and at [121], to do so: "… would be contrary to the decisions of three intermediate appellate courts: Hannover Life Re v Sayseng at [36], and TAL Life Ltd v Shuetrim at [175] and [188] in New South Wales; Beverley v Tyndall Life Insurance at [36] in Western Australia; and Hannover Life Re v Colella at [73] in Victoria."
The Court cannot embark on forming its own opinion, unless the insured has established that the insurer's opinion was not reasonably open to it acting reasonably and fairly in the consideration of the claim. (The issues raised in regard to Edwards v The Hunter Valley Co-Op Dairy Co Ltd by Muir J in McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197, at [62]-[72] and by Basten JA in Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2015) 89 NSWLR 412; [2015] NSWCA 104, at [17] - [32], were dealt with by Leeming JA in TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim at [168] - [188]. It is not necessary to repeat what his Honour wrote since the parties accepted that the Court should determine the issue in those circumstances.)

Other Principles

I shall next deal with the meaning of a number of other relevant phrases applicable to this case.
As set out above, the TPD definition in the Policy required that the Plaintiff be unable ever to work because of injury or illness for the TPD Waiting Period (of 6 months). It is at the end of that TPD Waiting Period that the inability to work must be such as to satisfy what has been called "the ETE clause", that is in the Insurer's opinion, the Plaintiff is unable ever again "to work for reward in any business any occupation or regular duties for which he or she is reasonably qualified by reason of education, training or experience": see, TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim, per Leeming JA, at [66].
Relevantly, "Business occupation or regular duties" was defined, in the Policy, to mean "full-time business, occupation or regular duties where the Insured Member was working at least 15 hours per week at the Date of Disablement" (my emphasis).
In this definition, there is a limitation on the business, occupation or regular duties being full-time, since the Plaintiff was working at least 15 hours per week at the date of disablement.
This construction, in my opinion, is consistent with the purpose of the Policy which was to provide benefits for Total and Permanent Disablement, not partial disablement.
Of course, the phrase "unable ever" is not the same as "unlikely ever", which raises the question of whether there is a higher onus placed on the Plaintiff in the present case.
Also, relevantly, in Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2011] NSWCA 204; (2011) 282 ALR 167, the Court of Appeal considered, at [88], the formulation "unable ever" to be "quite emphatic", with Giles JA finding that "the member must be unable ever to engage in or work for reward in any occupation or work".
In TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim, the Court of Appeal accepted this higher threshold, stating at [64]: "[T]he clause does not turn on the insurer being satisfied that the Insured Person will never be able to resume employment, but the lesser threshold that he or she is "unlikely ever" to do so. The clause is thus more readily satisfied than the language in Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2011] NSWCA 204; 282 ALR 167 regarded by Giles JA as "quite emphatic": at [88]."
In Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173, McDougall J expressed the view, at [58], that 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."
This is not to say that the employment is to be considered in the context of the insured being an employee. There are no words which restrict the meaning of the words "business occupation or regular duties" to the Plaintiff being an employee. Self-employment in a business or occupation may also be considered. This extends to an insured's personal efforts to obtain income without any assistance from any other person, or entity, and would include a business or occupation as a sole operator or in partnership or by way of any other legal structure: van der Noll v Sovereign Assurance Co Ltd [2013] NZHC 3051 at [124] - [125]. (The fact that the Plaintiff in the case had conducted her own business in which she had worked is a relevant consideration.)
In Cigna Life Insurance New Zealand Ltd v Rowles (High Court (New Zealand), Ellis J, 2 May 1997, unrep), the insurance policy included the phrase "reasonably qualified by education, training or experience". Ellis J held: "The word 'qualified' in the clause can be said to limit the clause to situations where the claimant has some formal qualification, but I consider its proper construction is in the more general sense of 'fit for'. That meaning is a usual one as will be seen from the Concise Oxford Dictionary. To be 'qualified' is to be 'made fit for'. In terms of the clause in the policy that fitness must be acquired by education training or experience. [The insured's] fitness for any occupation is to be judged at the time she makes the claim. The use of the word 'reasonably' to qualify 'qualified' (to use the word in another sense) can only import a lack of strict or rigorous approach to the claimant's fitness for other work or occupation. The extent of the retraining therefore is a factor."
In Halloran v Harwood Nominees Pty Ltd, Brereton J, also considered the relevance of further training. His Honour wrote, at [34] - [36]: "In Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300 (a decision which was reversed by the Full Court of the Industrial Court on appeal, on different grounds which do not affect its authority on this point) Hungerford J said (at 329): 'Inherent in those findings of unfairness is my conclusion that the definition of "totally and permanently disabled", which refers to "any occupation or work for which he is reasonably qualified by education, training or experience", makes the assessment of the relevant incapacity as at the time of the assessment and not after retraining. In other words, whether a member is unlikely ever to engage in work is to be determined according to his qualification, after the period of six consecutive months absence, at that time and not at some future time as a result of the retraining; that must be so, it seems to me, because the definition refers to any occupation or work "for which he is reasonably qualified". The definition does not admit, in my view of it, qualifications by education, training or experience which the member may or may not be able to obtain in the future.' In Fernance, the Court was considering a definition of total and permanent disablement in an insurance policy issued by National Mutual in terms relevantly identical to that in the present case. In my view, it is clear that Hungerford J, when speaking of 'the future', was speaking of the future after expiry of the period of six consecutive months absence, not the future after the date of hearing. Read as a whole, I think it is clear that when his Honour referred to the 'time of assessment', his Honour was referring to the expiry of the six month period - that is, the date as at which the assessment of total and permanent disability was to be made - and not the date on which the assessment was in fact made in the sense of the date of the decision of the trustee or the hearing before any court. Mr Cavanagh submitted that subsequent events, including actual employment for which the employee became suited only by retraining after the relevant date, were relevant and could be taken into account. In many cases, as was indicated in Pigeon J's judgment in Giles, evidence of subsequent events may be relevant. In the present case, if Mr Halloran had returned to work as a greaser or had returned to heavy labour that would prove that he could not have been permanently disabled for work for which he was suited as at the relevant date for assessment. He was, undoubtedly, suited by education, training and experience for work as a greaser or a labourer and had he subsequently returned to such work it could not have been argued that he was shown to be permanently disabled from it after an absence of six months from CSR. But the definition in the policy is concerned with employment for which the employee was suited at the expiry of the six month period. As Fernance makes clear, employment for which an employee becomes suited only subsequently by reason of retraining is not the type of employment which is contemplated by that definition, because it is not employment for which the employee was at the relevant date of assessment suited by his or her then education, training and experience. In my view, to take into account work for which the employee became suited only by subsequent retraining would be contrary to the authority of Hungerford J's decision in Fernance, and would also be contrary to the definition. If an employee is not disabled as defined at the relevant date, a subsequent deterioration in his or her condition does not qualify him for a disablement benefit. Conversely, if he or she is disabled as defined at the relevant date, a subsequent improvement in his or her condition does not retrospectively disqualify the employee from the benefit. To adopt the construction for which the defendant contends would make the time at which the application for a benefit is made and the time at which it was considered by the trustee decisive rather than the time objectively fixed by the trust deed as at which that decision should be made. It might well result in different decisions properly being made by a trustee on an initial application and on an application for reconsideration, and then a different decision again by a Superannuation Complaints Tribunal conducting a review as at the date that the matter came before it. That result seems to me an undesirable one."
The words "education, training or experience" are used both disjunctively and conjunctively. A person can be reasonably fitted for "full time business, occupation or regular duties" by reason of education or training or experience or a combination of each: Hannover Life Re of Australasia Ltd v Dargan (2013) 83 NSWLR 246; [2013] NSWCA 57, per Bathurst CJ, at [36]. His Honour then noted, at [37], "[t]he question of whether a person is reasonably fitted for a particular type of work will always depend on the facts of the particular case". The words describe a capacity to undertake a new job based on education, training or experience.
In Jones v United Super Pty Limited [2016] NSWSC 1551, at [65] - [67], Brereton J wrote: "In Hannover Life Re of Australasia Ltd v Colella, Garde AJA (with whom Ashley JA and Beach JA concurred) drew on these authorities to state that (1) the expression 'unable to do any work' is concerned with the capacity of the person to perform remunerative work of a kind for which the person is otherwise suited, and (2) a person may have the capacity to perform work, even though the occupation or employment is not available in the town or region in which the person lives, as the test is not concerned with the availability of employment or work to the person - rather it is concerned with the person's capacity to perform remunerative work for which the person is otherwise suited. His Honour elaborated that the policy insured the capacity of an insured to perform work in an occupation or remunerative employment, not the actual availability of work for the insured in the occupation or remunerative employment in the town or region in which the insured resides (emphasis added): '[34] To the extent, however, that the trial judge's construction of the expression "unable to work" is dependent on the existence of work "which is reasonably available in the market place and in an area in which it could be expected an insured in the position of the claimant could reasonably apply", the trial judge went too far. The TPD definition is concerned with the capacity of an insured to perform work in an occupation or remunerative employment. The policy does not insure the actual availability of work for the insured in the occupation or remunerative employment in the town or region in which the insured resides. … [37] The trial judge's definition of TPD did include a gloss on the definition contained in cl 1.3 of the policy insofar as it included the requirement that the work be reasonably available in the market place and in an area in which it could be expected that an insured in the position of the claimant could reasonably apply. As in Hill and in Wells, this went too far. ...' Academic writing has also endorsed this narrower approach. And the defendants submit that if anything that position may be stronger in this case, where the policy wording is not the conventional 'unlikely ever to engage' but 'unlikely ever to be able to engage'. However, I do not consider that the phrase was intended to have a materially different meaning. Ability to engage in work is not governed solely by capacity, but also by opportunity. Courts in this State have not, at least so far, adopted this more restrictive approach. In Wheeler v FSS Trustee Corporation ATF First State Superannuation Scheme, Robb J observed that the requirement that the insurer consider 'the actual, or real possibility of employment, rather than a theoretical possibility' 'survived' the decision in Shuetrim. As Garde AJA also stated in Colella, to be practical and meaningful, the concept of capacity to perform work must be in the context of an occupation or employment recognised in the community; there is no useful concept of work outside of remunerative activity within the framework of existing occupations or employment. I find it difficult to accept that someone who has always resided and worked in a regional town may be regarded as not TPD because there are jobs which he or she could physically perform, but only on the other side of the country. They would have lost the ability, which they formerly had, to work in any employment for which they were fitted by education, training or experience, where they live."
At [69], his Honour noted that the capacity to engage in the relevant employment, required the Insurer to have regard not only to her physical capacity but the Insured's psychological condition as well: "The insurer's reasons address only physical capacity, and not ability having regard to Mr Jones' psychological makeup, most significantly his fear-avoidance syndrome. Dr Marshman's view that the suggested occupations were within his capacity, on which the insurer chiefly relied, when read in the context of the whole of his evidence, was plainly a view about physiological capacity, shorn of the psychological overlay. The insurer's reasons also indicate that while consideration was given to the availability of such employments, little heed was given to the difficulties which Mr Jones would encounter in competing for such employment, given what Dr Giblin described as his need for an understanding boss and a very friendly work environment. Accordingly, the insurer's reasons reveal a failure to take into account the impact of the plaintiff's fear-avoidance syndrome, and his competitive disadvantages, and thus to take into account significant components of the plaintiff's incapacity and properly and fairly to assess whether he was likely to be able to engage in the suggested occupations."
At [71], his Honour added: "The concept of an occupation or work 'for which the Insured Person is reasonably fitted by education, training or experience' directs attention to the insured's vocational history to date, and to occupations for which that vocational history fits the insured. It refers not to any work for which the insured might have physical and mental capacity without further training, but to work for which the insured has been prepared and shaped by education, training and/or experience. The purpose of the provision is to provide a benefit for those who are disabled from following the vocations for which their past education, training and experience has prepared them - not any occupation which may be conceived, however far removed from his or her vocational history, which can be performed without further education, training or experience."
In Hellessey v MetLife Insurance Limited, Robb J, after referring to the passage above, added at [156]: "When the insurer gives consideration to the question of whether or not the effect of the claimant's incapacity is that the claimant is unlikely ever to engage in relevant employment, its obligation to deal with the claim reasonably requires that it take care to accurately determine the probable ongoing psychological effects of the claimant's injury. If the insurer retains a vocational assessment consultant to advise whether relevant employment is available that is likely to fall within the capacity of the claimant, there may be a risk that undue weight is given to the physical capacity of the claimant without proper regard to real psychological limitations. It would be preferable for the vocational assessment consultant to prepare his or her report on the basis of realistic assumptions as to the psychological consequences of the claimant's injury. Where the consultant is not asked to do that, the report that is prepared may have latent flaws. Sometimes the danger that a mistake will be made is sought to be addressed by having the consultant advise on the consequences of physical incapacity, supplemented by medical opinion as to whether psychological incapacity requires different conclusions to be drawn. That approach divides the task between consultants with fundamentally different expertise, and introduces a significant risk of misunderstanding."
His Honour also noted, at [167] that in considering the definition of TPD in the policy, it: "… may be necessary to take into account the effect of medication. Medication may cure the incapacity, or if it does not cure it, it may create a situation where the claimant becomes capable of acting with reasonable normality notwithstanding the continuing underlying incapacity. In other cases, the medication may have continuing effects that leave the claimant on the borderline between capacity and incapacity, such as where the claimant must be tranquillised to blunt the effect of the incapacity. In still other cases, the medication may make the claimant objectively capable, but an obligation to disclose to prospective employers the need for medication may inhibit the real likelihood of employment."
The time at which a claimant suffers TPD is capable of a general answer, as discussed by Ball J in Ziogos v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme [2015] NSWSC 1385, at [86] as follows: "… Generally, and subject to the terms of the policy, the question whether a member suffers from TPD is to be determined as at the expiration of the qualifying period specified in the policy. In the normal case, it is at that point of time that the insured person's cause of action under the policy arises: see Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-751 at 74,529 per Pidgeon J, cited with approval by Brereton J in Halloran v Harwood Nominees at [33]. See also Stevenson J's discussion in Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 at [51]."
The question is, however, whether the Plaintiff's incapacity objectively satisfied that Clause at the relevant assessment date. It is not whether the prognosis of the Plaintiff, based upon the medical and other evidence available at the relevant assessment date suggests that "the ETE clause" was satisfied. What is material is "not the appearance as at the assessment date but the actual probable consequences of the incapacity": Hellessy v MetLife Insurance Limited at [129].
Then, where, as in this case, after the assessment date but before the Insurer decides whether it is satisfied that the TPD definition has been established, time passes, the Insurer must have due regard to all medical, and other evidence, concerning the likely consequences of the Plaintiff's incapacity as at the assessment date that becomes available: TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim at [153] - [154].
Robb J referred to this in Hellessy v MetLife Insurance Limited at [130], adding: "…In fact, where there are prospects of the claimant recovering from the incapacity in a manner that will defeat the satisfaction of the ETE clause, the evidence available as at the assessment date may be an unsound basis for determining whether the TPD clause has been satisfied, and the consequences of later and particularly longitudinal evidence may be a more reliable guide to the true nature of the claimant's incapacity as at the assessment date."
The Court of Appeal gave consideration to this topic in Gilberg v Maritime Super Pty Ltd [2009] NSWCA 325, at [19] - [22], in which Hodgson JA, with whom Allsop P (as his Honour then was) and Campbell JA agreed, wrote that if the predicted course of the condition from which the Insured suffered took a course that was different to the one predicted, the Insured could submit other information, including medical reports, disclosing what course the Insured's physical, or mental, condition had taken and that if the information or the reports gave good reason to believe that the reports previously given were mistaken in their predictions, reconsideration may have to be given to the Insured's application.
In Board of Trustees of the State Public Sector Superannuation Scheme v Gomez [2018] QCA 67, the Queensland Court of Appeal referred to Gilberg v Maritime Super Pty Ltd and stated, at [28], that whilst the decision: "…related to a different statutory scheme than the present, with more specific requirements regarding the receipt of reports …, the test it propounds for determining whether to reconsider an application - a reasonable possibility of a different result - should be applied here. That is because it derives logically from the duty to give properly informed consideration to an application. If the further information indicates a reasonable possibility of a different result then, until such time as it is considered in addition to the earlier considered information, it can no longer be said the Board has met its duty of giving properly informed consideration to the application."
In MX v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme, Slattery J discussed, at [104], the use of subsequent medical, and other, evidence, stating: "It is not uncommon in the consideration of TPD claims for a party to contend that medical and other expert opinions expressed subsequent to the date upon which the insurer is required to assess whether or not a claimant is TPD should be taken into account when examining the claim at the earlier date for the required assessment. Depending upon the terms in which such expert opinions are expressed, they may be relevant, and may be taken into account by the Court when it is considering the probability of a claimant being able to engage in suggested occupations at the date in which an insurer is required to assess TPD ... As McPherson JA explained in McArthur v Mercantile Mutual Life Insurance [2002] 2 Qd R 197; [2001] QCA 317 at [23], this conclusion accords with the principle that the Court does not speculate when it may know…".
In McArthur v Mercantile Mutual Life Insurance Co Ltd, at [74], in a paragraph referred to in TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim, at [150], Muir J (with whom McMurdo P agreed), wrote: "Medical reports coming into existence after the relevant time will be admissible provided that they are pertinent to the determination of the appellant's condition at the relevant time."

Determination

There was no dispute that the tasks for the Insurer, when considering the Plaintiff's claim, was, in general terms, to first consider whether the Plaintiff had been unable to work because of injury or illness for six consecutive months after the date of disablement; and second, to form an opinion as to whether it was satisfied that the Plaintiff had become unable ever to work full-time for reward in any business, occupation or regular duties for which she was reasonably qualified by education, training or experience.
In relation to the first task, the Insurer was to consider not only whether the Plaintiff had been unable to work for six consecutive months after the date of disablement but also that her inability was because of injury or illness.
The Insurer was required to be satisfied that the Plaintiff suffered from TPD by reference to the facts that existed at the date of assessment in accordance with the Policy. That date was calculated by reference to the expiration of the six month qualifying period, which, in this case, was 25 (or 28) July 2008. The result of the relevant decision was either acceptance or non-acceptance of the Plaintiff's claim.
I turn next to examine the Plaintiff's challenges to the respective decisions of the Insurer, commencing with the Insurer's TPD Final Claim Summary of 23 November 2016, then, its letter of 27 September 2017 (whether a decision or reasons for its earlier decision), and its decision in February 2018.
As stated earlier, the Plaintiff submitted her claim to the Trustee on 15 October 2014 and to the Insurer in early January 2015. Between that time and the TPD Final Claim Summary dated 23 November 2016, I have detailed earlier what occurred on the part of the Insurer.
In submissions, counsel for the Plaintiff identified additional documents that were provided to the Insurer on 4 November 2014, 11 December 2014, 17 March 2015, 29 June 2015, 11 August 2015 and 9 February 2016. In addition, the Insurer obtained clinical notes and other treatment records from the Plaintiff's treating medical practitioners, together with two reports from the Plaintiff's treating general practitioner, Dr Stillger.
In addition, during the period referred to Insurer sent the "procedural fairness letter" dated 31 May 2016 to which a response dated 10 June 2016 was sent by the Plaintiff's solicitors.
As stated earlier, the TPD Final Claim Summary was not provided to the Plaintiff's legal representatives. Yet, this was the document referred to by counsel for the Insurer as the "first refusal document" in submissions in reply. In his oral submissions (T77.25 - T77.27), he referred to the Insurer having "decided in November 2016 to decline the claim and [having] advised the insured trustee of that decision by this document of 23 November 2016".
The TPD Final Claim Summary was referred to in an email dated 2 December 2016 as the Insurer's "recommendations [sent] to the [VS] Fund". It was not simply an internal working document of the Insurer providing evidence of the reasons for the Insurer's decision.
In the letter dated 7 December 2016, to the Trustee, the Plaintiff's solicitors seem to have accepted that it appeared that "the insurer has declined our client's claim on the basis that she was not allegedly under medical treatment in 2008". The letter went on to state that if it had done so, that was a breach of its duty as the Insurer had not provided a procedural fairness letter after the Plaintiff's claim was re-assessed by a different case manager.
Counsel for the Plaintiff submitted that it was the TPD Final Claim Summary of 23 November 2016 that constituted "in fact, the true reasons of the decision maker who made the decision to decline the claim": T78.46 - T79.04.
There is no evidence that after 2 December 2016, that the Plaintiff complained of the Insurer not having provided reasons for declining the Plaintiff's claim: T79.40 - T79.50. However, when the Insurer wrote again to the solicitors for the Plaintiff, on 27 September 2017, the Insurer appears to have proceeded upon the basis that "a complaint has been made on behalf of your client that although the Trustee had informed your client that we had declined this claim, reasons for our view had not been provided": Ex. A/256.
At the hearing, the Court noted as an agreed fact that whilst there are no documents in evidence by, or on behalf of, the Plaintiff complaining of a lack of reasons, the parties accept that a complaint was made by, or on behalf of, the Plaintiff about an absence of reasons by the Insurer for it declining the Plaintiff's claim: T80.10 - T80.16. The letter of 27 September 2017 was produced by the Insurer in response to the Plaintiff's complaint: T80.24 - T80.30.
The Plaintiff submitted that the letter dated 27 September 2017 should be disregarded, as the author of that document is not known and it could not be stated that he, or she, was the same as the author of the TPD Final Claim Summary dated 23 November 2016. It was submitted that it was either, not both, the TPD Final Claim Summary or the letter of 27 September 2017 that constituted the Insurer's reasons for declining, for the first time, the Plaintiff's claim for TPD benefit.
Counsel for the Insurer described the September letter as "more fulsome and detailed reasons than that conveyed between insurer and insured, that is between AMP and [the] Trustee": T78.10 - T78.17. In other words, the Insurer submitted that the two documents should be read together, although the later document should be given "primacy" as "the earlier is more clearly a working document and the second is more for the purpose of informing a person who is apparently seeking more detailed reasons": T82.28 - T82.40.
There were many documents to consider and the matters were complex. As the Plaintiff's solicitors recognised in the letter of 10 June 2016, that in respect of the "lower back injury and the bowel issues, we acknowledge that our client suffered from these conditions after ceasing work". Accordingly, the claim for lack of reasons made by the Plaintiff fails.
The reasons that were provided enable the Court to consider the process of reasoning by which the Insurer reached its decision. It is the statement of reasons that will, normally, be accepted as evidence of the Insurer's reasoning process. In the present case, it is the TPD Final Claim Summary of 23 November 2016, which provides the evidence of the Insurer's reasoning process in first declining the Plaintiff's claim.
The essence of the Insurer's decision, as identified in the written submissions of counsel, was: 1. the medical evidence available to the Insurer did not support a conclusion that the Plaintiff was unable to work because of injury or illness at the time of her ceasing work in January 2008; and 2. the evidence available to the Insurer did not reasonably justify the formation of an opinion that, as at July 2008, the Plaintiff was unable ever again to work for reward in any business, occupation or regular duties for which she was reasonably qualified by education, training or experience.
It is necessary to consider whether the views expressed by the Insurer can be shown to have been unreasonable on the material then before it, or whether it had not considered the correct question and that, in considering that question, and informing itself as to matters material to its determination, the Insurer had not acted fairly and reasonably. The latter ground would include taking, or failing to take, particular matters into account if doing so, or omitting to do so, would constitute not acting fairly and reasonably having due regard for the interests of the Plaintiff.
The evidence available to the Insurer, as at November 2016, and thereafter, demonstrated that the Plaintiff, at least until early 2006, whilst suffering from a psychological condition, as well as some physical limitations, was able to work fulltime. There was no suggestion, in the evidence, that she had been unable to continue working. Then, there were the events of early 2006. The evidence provided in regard to the Plaintiff's condition thereafter, in my view, demonstrated that her psychological condition, and physical condition, had deteriorated. Yet, despite her limitations, the Plaintiff was driven to continue to work and to commence a PhD. Her conduct, overall, as previously stated, does not present a picture of a person not prepared to work if able to do so.
However, by November 2016, it was clear that the Plaintiff had not worked, at all, for nearly 8.75 years. Of course, that was only one of the facts that the Insurer was required to consider. It is to be remembered that the formation of an opinion was required to be made as at the end of 6 months from the Date of Disablement, or on 25 (or 28) July 2008.
The medical, and other, evidence, available, which had been provided to the Insurer, at, or before, 23 November 2016, as set out above, that was relevant to each of the questions identified above, in my view, demonstrated that the Plaintiff was suffering from both psychological, and some, physical, disabilities at the time she ceased work in January 2008.
It was equally clear, from the documents then available to the Insurer, that, as at the Date of Disablement, the Plaintiff's ability to work for remuneration was impaired because of those conditions. The psychological conditions from which she suffered at about the date she ceased work on 25 (or 28) January 2008 included PTSD, a panic disorder, and depression. This was made clear by the Patient Notes to which reference has been made. Those Patient Notes recorded the conditions for which she was being medicated, and the series of different anti-depressant, and anxiolytic, medications which she had been prescribed.
There was also the report, dated 28 September 2008, of Mr Marriott. Her psychological conditions were manifested by her behaviour, which included a number of self-harm activities, drinking alcohol to excess, panic attacks and agoraphobia, all of which were recorded in the Patient Notes to which reference has been made.
The Plaintiff's physical conditions included a cancer diagnosis in 2005, as well as symptoms of gradual memory deterioration, the latter of which was reported as being consistent with an hypoxic brain injury suffered in the motor vehicle accident in 2006.
The symptoms, psychological and physical, of which she was complaining, prior to January 2008, it is fair to say, were not constant, and the medical reports for the period, prior to 28 July 2008, did not reveal that the Plaintiff was then incapacitated from all forms of employment. Even Mr Marriott's report dated 28 September 2008 did not conclude that the Plaintiff was unable to work during that period or otherwise.
In fact, during the period during which the Plaintiff had suffered these very conditions and behaviours, that is, between about 2000 and January 2008, and particularly between March 2006 and January 2008, she appears to have remained in full-time employment, including, between late 2007 and when she ceased work in January 2008, with the Employer.
That a question about the complaint regarding PTSD existed, was identified, most clearly, in an email dated 6 October 2016, from Mr Brejnakowski of the Insurer to the Plaintiff's solicitors, wherein he stated whilst he would like to investigate the Plaintiff's PTSD, that "she may have been able to get work, however due to the condition of PTSD was unable to sustain her work" and that he would "have my internal doctors review my findings".
Yet, no report of any internal doctors' review is the subject of evidence given by the Insurer. That is an omission that was unexplained by the Insurer. If no internal doctors' review was carried out, one wonders why it was raised. If such a review was carried out, the results were not made available to the Plaintiff or to the Court.
Subsequently, in the TPD Final Claim Summary dated 23 November 2016, the Insurer, in declining the claim, referred to various medical reports, and stated that: 1. The back injury the subject of her complaint "occurred 17 months after she ceased work"; 2. There was limited medical evidence leading up to her ceasing work to reflect that her conditions or symptoms impacted her function, as evidenced by her ability to maintain her academic studies; 3. She was receiving no psychological, or psychiatric, treatment at the time; and that her subsequent treatment, from Dr Kirkman, had occurred over two years later and was limited to her having attended two appointments only; 4. She was not receiving treatment for the bowel complaints upon which she had relied.
These matters led the Insurer to not accept that the Plaintiff had been "continuously unable to work because of injury or illness for the TPD Waiting Period" and thus that she did not satisfy the first limb of the TPD definition.
The Plaintiff herself, in the Member's Statement (Ex. A/138 - 140A) dated 10 July 2014, and then on 18 June 2015 (Ex. A/170), asserted that "[d]ue to my mental illness symptoms and disabilities I ceased all work". Whilst her statements, in each of these documents, cannot be regarded as proving the fact asserted, and even though the Insurer was not obliged to accept what was asserted by her, or on her behalf, her statements were relevant and should have been taken into account. The work history of the Plaintiff to which I have referred, should also have been considered on the question of the acceptance, or rejection, of her stated belief.
Furthermore, whilst the Insurer was entitled to express doubt, or even scepticism, about such statements, any such doubt, or such scepticism, needed to be reasonably open on all of the evidence available to the Insurer at the time it considered her position. That there was no suggestion that she was untruthful on that topic is also relevant to considering what she had written and its significance.
It is correct, as submitted by counsel for the Insurer, that none of the medical records provided to the Insurer stated, specifically, that the Plaintiff ceased work because of the psychological, or physical, conditions from which she suffered. However, on balance, bearing in mind the information available, it is likely that her psychological condition, particularly the symptoms that were identified, prior to January 2008, and her memory problems, were likely to have contributed to her ceasing work. The Plaintiff certainly believed, and stated, on oath, more than once, that it was her mental state that had led to her ceasing work. It was not suggested to her that she was untruthful in this regard.
There was evidence, also available to the Insurer, which suggested other issues, such as the medical condition suffered by the Plaintiff's mother and the impact upon the Plaintiff's life, by taking on some added family responsibilities, together with the Plaintiff having commenced the course of PhD studies, which had also affected her psychological conditions and caused her to cease work.
The Plaintiff had not returned to any form of work during the 6 month period between 25 (or 28) January and 25 (or 28) July 2008. It was not suggested to her, in cross-examination, or otherwise, that she had been able to work, but had chosen not to return to employment.
Nor was there any suggestion in any of the medical records that she was malingering. Indeed, her conduct subsequently, in applying for jobs, at least until about September 2009, suggests that she was trying to obtain work.
The TPD Claim Summary also placed reliance, in leading the Insurer to the conclusion that the Plaintiff did not meet the definition of TPD, on the Plaintiff maintaining her academic studies in Social Work throughout 2008 and there being no clinical entries existing "from either GP to reflect that [the Plaintiff] was attending for treatment of either condition of PTSD or recurrent bowel symptoms".
Yet, there were the Patient Progress Notes, as well as a number of reports of Dr Stillger, available to the Insurer at the time of the TPD Final Claim Summary of 23 November 2016, that were supportive of the Plaintiff having left employment in January 2008 because of illness and that she had remained out of work for the TPD Waiting Period.
I have considered the view expressed by the Insurer that Dr Stillger "did not make any attempt to describe the symptoms suffered by [the Plaintiff] in 2008". The view formed by the Insurer was not open to it if acting reasonably and fairly in the consideration of the claim. The symptoms from which the Plaintiff had been suffering for a significant period were adequately identified in the Patient Progress Notes and other medical records to which reference has been made.
Also, the complaint by the Insurer that the basis of Dr Stillger's view that, in 2008, the Plaintiff ceased work due to illness was not disclosed, and that she did not even identify the symptoms which she believed were being suffered at the time are also without merit for the same reason.
Furthermore, there is little in the TPD Final Claim Summary that identified whether the Insurer had given real consideration to the ongoing consequences of the Plaintiff's medication which the Patient Notes identified as being prescribed for her before January 2008, between, January and July 2008, and thereafter. The medical records referred to the Plaintiff being anxious and depressed and also showed that she was being prescribed, and taking, anti-depressant and anxiolytic medication, both before, and throughout, the whole of the 6 month period following 25 (or 28) January 2008.
That, of itself, suggests that the medical practitioner who had seen the Plaintiff at the time of giving the prescription had diagnosed, and was treating, a psychological condition. In this regard, the statement that the Plaintiff was not obtaining treatment was inconsistent with, and contrary to, the contents of the Patient Progress Notes.
The Insurer appears to have limited itself to the fact that the Plaintiff was not attending for treatment by a medical practitioner for either condition of PTSD or recurrent bowel symptoms. Yet, I have identified the medical records relating to her attendance both before, and after, 25 (or 28) January 2008 and the condition, particularly the psychological condition, from which she then suffered and the prescriptions provided to her during that period.
There were documents also supportive of the Plaintiff being TPD at the relevant date. Indeed, in one respect, the reference to Dr Stillger's "report" of 24 December 2014 as not supporting the Plaintiff being TPD appears incorrect because the date appears wrong and because the report of 2 October 2014, which appears to be the closest one in time to the "report" identified, does, in fact, support the Plaintiff being TPD.
A similar issue arises with the last report listed, being the report of Dr Danny Buchanan of 27 April 2016. There is a report of Dr Buchanan from 2011 in the documents (Ex. A/318 - 319) but there is none of April 2016, the subject of the evidence.
The TPD Claim Summary dated 23 November 2016 referred to the definition of TPD in the Policy, as being "the Insured Member has been continuously unable to work because of injury or illness for the TPD Waiting Period". It also referred to "in the Insurer's opinion … the Insured Member is unable ever again to work for reward in any business, occupation or regular duties for which … she is reasonably qualified by education, training or experience".
However, the Insurer did not seem to give detailed consideration to the definition of business, occupation or regular duties where the Insured Member was working at least 15 hours per week at the Date of Disablement as "full-time business, occupation or regular duties" (my emphasis). In this regard, the concept of business, occupation or regular duties for which the Insured Person is reasonably fitted by education, training or experience directs attention to the insured's vocational history to date, and to occupations for which that vocational history fits the insured.
Unlike Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd, in which the relevant clause of the policy was silent in respect of whether the insured was able to resume occupation on a full-time or part-time basis, in the present case, the definition, in the Policy, explicitly referred to "full-time business, occupation or regular duties". The inclusion of that reference was, therefore, a necessary consideration for the Insurer.
Furthermore, although the words "unable ever" in the Policy incorporate a more stringent test than "unlikely ever" (in some other policies), the former phrase is qualified by the reference to the ability to resume full-time business, occupation or regular duties. In either case, the word "ever" alters the test that would apply in its absence. The adverb requires that the opinion be not merely about the present, but about the relevant future as well.
Whilst the TPD Final Claim Summary did not specifically identify any vocational options that the Plaintiff could perform bearing in mind the conditions from which she was suffering and the medications which she was being prescribed, there was evidence, provided in the Job Capacity Assessment Report of December 2010, that there was some work that she could do. However, importantly, her capacity, in relation to such work, was limited to part-time work, that is less than 15 hours per week.
There was no reference in the Job Capacity Assessment Report of December 2010 that she could work for more than 14 hours per week, even with "intervention".
The Insurer had no basis upon which to reject the Job Capacity Assessment Report so far as it related to the Plaintiff's limitations caused by the psychological conditions from which the Plaintiff was said to have been suffering in July 2008. Nor did it provide any criticism of the Job Capacity Assessment Report as having suggested that the Plaintiff was likely to be only able to work a maximum of 14 hours per week.
There was no evidence of any other assessment of the Plaintiff's suitability for future full-time employment as at July 2008. The Insurer does not appear to have sought such evidence and did not raise that matter with the legal representative of the Plaintiff.
Also, there was no other reference to the Insurer having considered the requirement relating to her ability to work "full-time" in any business, occupation or regular duties for which she was reasonably qualified by education, training or experience.
The TPD Final Claim Summary did not identify any categories of full-time work in the business, occupation or regular duties, for which the Plaintiff was reasonably qualified by education, training or experience, which she would be able to perform. That she was able to maintain her academic studies in Social Work throughout 2008 would not, necessarily, go to whether she was continuously unable to work because of injury or illness for 6 months after the Date of Disablement, or for that matter, thereafter. After all, her studies were conducted off campus via online, telephone and correspondence attendance, which was not what was required for being, again, able to "work for reward in any business, occupation or regular duties for which … she is reasonably qualified by education, training or experience".
Yet, as stated, the definition of TPD did not turn on the Insurer forming an opinion that the Plaintiff was unlikely ever again to be able to resume work, but the higher threshold that, at the assessment date, she was unable to do so. In coming to its opinion, the Insurer was entitled to consider not only whether she could resume work as a social worker, but also whether there were other occupations (namely, occupations or work for which she was reasonably qualified by reason of education, training or experience) that she would be able to perform. In this regard, her extensive education, training and experience, were relevant matters. However, whatever business, occupation or regular duties that she was required to perform would have to involve working on a full-time basis.
There was no information available to the Insurer as to the requirements of any full-time vocational option, or as to the prospects of the Plaintiff obtaining any full-time business, occupation or regular duties, which would take into account her psychological condition. Even if there had been, there was no information provided as to the availability of suitable employment in the area where the Plaintiff lived as at July 2008.
Indeed, the Job Capacity Assessment Report to which reference has been made, even though it referred to the physical limitations caused by the event in September 2009, pointed out that the primary condition was her psychological condition (Personality Disorder), said to have been "fully diagnosed, treated and stabilised", which was limiting her capacity to work more than 14 hours per week.
It is also correct to say that none of the medical records relating to the period between when she ceased work and 25 (or 28) July 2008, recorded that the Plaintiff was unable to engage in work in the business, occupation or regular duties, for which the Plaintiff was reasonably qualified by education, training or experience, whether on a full-time, or part-time, basis. Indeed, Dr Kirkman, in his report of October 2010, suggested that the Plaintiff ought to return to work, albeit that he doubted that "she can work as a social worker".
However, it is not clear from the report whether Dr Kirkman was opining that any work she would be able to do, would be on a full-time basis. Reading the report as a whole, I favour the view that it is more likely than not he was referring to part-time, rather than full-time, work, particularly since he makes reference to her agoraphobia. What is clear from the report is that her psychological conditions provided obstacles to her performing work.
Taken overall, the decision in the TPD Final Claim Summary reflected a failure by the Insurer to consider whether, in the real world, "full-time business, occupation or regular duties" for a person suffering from the psychological condition from which the Plaintiff was suffering, and who was taking both anti-depressant, and anxiolytic, medication, was reasonably available. In this regard, the opinion formed by the Insurer was not open to it acting reasonably and fairly in the consideration of the claim.
In my view, the Insurer took too narrow a view of the concept of being unable ever again to work for reward, carrying out full-time business, occupation or regular duties for which she was reasonably qualified by education, training or experience, by failing to have due regard to the psychological obstacles, and difficulties with memory, and competitive disadvantages that would be likely to adversely impact upon her ability to do so.
The Insurer also failed to consider, in any meaningful way, the effect of the medication which the Plaintiff was being prescribed for her psychological condition. Thus, the Insurer failed to take into account a significant component of the Plaintiff's incapacity.
It was also incorrect to state, as the Insurer did, that "[T]he medical evidence indicates that, in and after July 2008, your client reported panic attacks, agoraphobia, and increasing panic, all of which were attributed by her medical practitioners to a temporary stressor, being a Court trial in which your client was involved".
The medical records clearly indicated that the psychological condition had been exacerbated as a result of the temporary stressor, not that they were caused by that temporary stressor.
Then, even though the Insurer was entitled to consider that the Plaintiff's condition appeared to have improved after the trial in 2008, she had not completely recovered and some of the symptoms persisted.
These acts and omissions are relevant to whether the view taken by the Insurer can be shown to have been unreasonable on the material then before it in forming the opinion that the Plaintiff would be unable ever again to work for reward, full-time, in any business, occupation or regular duties for which she was reasonably qualified by education, training or experience. In this regard, the clause of the Policy required the Insurer to examine the occupations for which the Plaintiff was fitted in the sense of the occupations for which her education, training and experience had prepared her. That was, naturally, shaped by her vocational history, which for the most part was limited to areas of social work.
The acts and omissions are also relevant to the question whether the Insurer had not considered the correct question, and that, in considering that question and informing itself as to matters relevant to its determination, it had not acted fairly and reasonably. Overall, they lead me to conclude that the Insurer's decision was vitiated for each of these reasons, with the result that the decision in the TPD Final Claim Summary dated 23 November 2016 is vitiated.
If the TPD Final Claim Summary dated 23 November 2016 is to be read with the letter dated 27 September 2017, so as to constitute the first declinature, as was submitted by the Insurer, that letter also must be considered.
Again, whilst there is a reference to the definition of TPD in the Policy, there is no real consideration given to the definition of business, occupation or regular duties where the Insured Member was working at least 15 hours per week at the Date of Disablement as "full-time business, occupation or regular duties".
In relation to the letter dated 27 September 2017, the suggestion that the "medical evidence does not show that [the Plaintiff] was reporting any significant symptoms or consulting any doctor in relation to her claimed conditions" does not seem to take into account, particularly, the Patient Notes. I have referred to these earlier.
Yet the letter, made specific reference to the Plaintiff continuing to take the anti-depressant and anxiolytic medication, and being "better with medication". However, how the requirement to continue to take the medication in order to remain "better" would affect her ability to work "full-time" was not identified.
Whilst it is true that the Plaintiff's condition was recorded as being "good at present" and "well", and that the panic attacks were being controlled by medication, there was the reference to the medication continuing to be prescribed. It is clear that throughout the period between January and July 2008, the Plaintiff was continuing to take the prescribed medication at a time when she was not working at all. It was not suggested that she was not required to do so.
Again, the Job Capacity Assessment Report, although provided in December 2010, highlighted the primary psychological condition. As stated previously, it did not suggest any real possibility of the Plaintiff returning to full-time work.
Some of the other omissions to which reference has been made in relation to the TPD Final Claim Summary are also apt to this letter also. Most importantly, there was a failure to deal with the issue of the Plaintiff's ability to engage in full-time work.
Therefore, for these reasons, I am of the view that, in relation to the letter of September 2017, to the extent that it constitutes the declinature, there was an error on the Insurer's part, in that it did have appropriate regard to all of the information available to it. Nor did it form an opinion that was reasonably open to it.
I then turn to the letter dated 16 February 2018 sent by the Insurer to the Plaintiff's solicitors. In this letter, the Insurer stated that "[I]t remains the case that your client does not appear to have described any substantial symptoms at or about the time that she ceased work". In this letter, there was a reference to some of the medication prescribed to the Plaintiff, namely Kalma and Pariet (Ex. A/272). I have referred to the other medication which was prescribed and which it appears she was taking.
In this letter, the Insurer acknowledged that in and after July 2008, the Plaintiff was still suffering from a stressor, albeit that it was regarded as being a "temporary" one. It made reference to her having experienced improvement and described her condition as being diagnosed "in relatively positive terms". Indeed, the continuation of her psychological conditions is referred to as "having been substantially reduced" by the time of the assault.
The letter referred to the subsequent assault in September 2009, which it stated had "resulted in an exacerbation of her psychological symptoms" (my emphasis). It is clear, in this letter, the Insurer accepted that the Plaintiff's psychological condition and the symptoms continued after January 2008 and into 2009.
(Later in the letter there is a reference to the other physical conditions which arose after July 2008.)
The letter referred then to "a positive opinion that the necessary adverse prognosis applied as at July 2008", without identifying the prognosis to which it was referring, and then goes on to repeat "the severity of her symptoms after September 2009 is (in large part) attributable to the assault".
I have earlier referred to the conclusion in that letter. That conclusion (at Ex. A/276) makes no reference at all to the definition requiring the Plaintiff returning to full-time work or the medication that the Plaintiff was prescribed and its effect on her capacity to engage in full-time work.
I shall not refer again to the other matters of omission referred to in this letter (to which I have earlier referred in relation to the earlier declinature). It follows that I am satisfied that there was an error on the Insurer's part, in that the Insurer did not give appropriate regard to all of the information available to it. Nor did it form an opinion that was reasonably open to it.
I consider, bearing in mind the time taken to get to this point, it being remembered that the Plaintiff ceased work over 10 years ago, that this Court should now determine whether, on the material available to it, the Plaintiff's claim falls within the Policy: Hannover Life Re of Australasia Ltd v Jones, at [86].
(I have not forgotten what was written by Basten JA in his separate judgment in Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd, at [25] - [28], but I note that neither of the other judges (Meagher JA; Gleeson JA agreeing) suggested that the existing line of authority needed reconsideration.)
The first issue for consideration by the Court is whether the Plaintiff was continuously unable to work because of injury or illness for 6 months after the Date of Disablement. In this regard, I am satisfied that the psychological condition from which the Plaintiff suffered was an "illness" within the meaning of that term in the Policy.
I am also satisfied that it was because of this illness, that she was continuously unable to work for the 6 months 25 (or 28) January 2008. I have referred to the apparent acceptance, in the correspondence, by the Insurer, that the psychological condition from which the Plaintiff was suffering in January 2008, whilst it was improving, had not resolved completely. Indeed, it was exacerbated by the additional stressors of the Plaintiff's mother's illness which prompted more responsibilities to be placed on the Plaintiff's shoulders, and the additional studying for the PhD.
The issue, then, is whether the Court is satisfied that the definition of TPD has been satisfied. This requires more than the Court being satisfied that the Plaintiff was unlikely ever again to be able to resume work. Rather, the Court must be satisfied that she was, at the assessment date of 25 (or 28) July 2008, unable to do so.
In coming to this opinion, the Court considers not only whether she could resume work as a social worker, but also whether there were other occupations (namely, occupations or work for which she was reasonably qualified by reason of education, training or experience) which she would be able to perform on a full-time basis. In this regard, her extensive education training and experience are relevant matters to consider.
In the present case, I do not think that the issue of the relevance of geographical limitations on employment play any substantial role, as I am satisfied that, as at July 2008, the requirement relating to her inability to work "full-time" in any business, occupation or regular duties for which she was reasonably qualified by education, training or experience, was satisfied.
It is likely that she could have undergone some retraining. Yet, in my view, the psychological condition, from which I am satisfied the Plaintiff suffered at the time she ceased work in January 2008, and which continued throughout the 6 month period thereafter, would have prevented her from working work "full-time" in any business, occupation or regular duties for which she was reasonably qualified by education, training or experience. It was not suggested to her, in cross-examination, that she had a tendency to underplay her actual capacities prior to, or during, 2008.
The Court has proceeded to the second stage inquiry and assessed for itself whether the Plaintiff is TPD within the Policy as at the time for assessment, being 25 (or 28) July 2008 and finds that she is. In my view, the Plaintiff was, as at 25 (or 28) January 2008, and for the 6 month period thereafter, an extremely vulnerable personality who was unlikely to be able to deal with the stressors of everyday life, and particularly everyday working life, particularly working life as a social worker.
In my view, her condition was likely to continue thereafter as there was no suggestion of any resolution of the psychological condition. Her continued medication, albeit, in varying doses, would not assist in this regard.
The Plaintiff, therefore, is entitled to a declaration to that effect and orders that the Insurer pay the sum of $90,000, plus interest, to the Trustee, for distribution to the Plaintiff.
I require the parties to discuss the issue of interest and, if agreement cannot be reached I shall hear further argument. As there may be an application for a special costs order, I shall also allow for that possibility and for the parties to formulate the declarations and orders in the form they consider appropriate also bearing in mind the dismissal of the proceedings against the Trustee.
The proceedings will be adjourned to a date to be fixed for the making of orders and for any further argument on the outstanding issues of interest and costs. If agreement is reached and signed Short Minutes of Orders are delivered to my Chambers in hard and soft copy, I shall deal with the balance of the matter in Chambers and vacate the date to which the matter is adjourned.
The Court: 1. Directs the parties to bring in Short Minutes of Order to give effect to these reasons. 2. Lists the proceedings for mention for any argument on interest, costs or other consequential issues, on a date to be arranged at the date of the publication of these reasons. 3. Grants liberty to apply.

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: 11 October 2018

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